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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: July 2, 1996 Commission File Number 1-2979
NORWEST CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 41-0449260
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479 (612) 667-1234
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(Address of principal executive (Zip Code) (Registrant's telephone
offices) number, including area code)
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibits:
4(a) Form of Distribution Agreement.
4(b) Form of Fixed Rate Medium-Term Note.
4(c) Form of Floating Rate Medium-Term Note.
4(d) Form of Calculation Agent Agreement between the Corporation and
Norwest Bank Minnesota, N.A.
4(e) Indenture dated as of December 15, 1993 between the Corporation and
The First National Bank of Chicago.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NORWEST CORPORATION
Registrant
Dated: July 2, 1996 By /s/ Randy I. Prindle
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Randy I. Prindle, Assistant Treasurer
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NORWEST CORPORATION
INDEX TO EXHIBITS
Form of
Exhibit No. Exhibit Filing
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4(a) Form of Distribution Agreement. . . . . . . . . . Electronic
Transmission
4(b) Form of Fixed Rate Medium-Term Note . . . . . . . Electronic
Transmission
4(c) Form of Floating Rate Medium-Term Note. . . . . . Electronic
Transmission
4(d) Form of Calculation Agent Agreement between the
Corporation and Norwest Bank Minnesota, N.A. . . Electronic
Transmission
4(e) Indenture dated as of December 15, 1993
between the Corporation and The First National
Bank of Chicago . . . . . . . . . . . . . . . . . Electronic
Transmission
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[Series J Notes]
NORWEST CORPORATION
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
July 2, 1996
Morgan Stanley & Co. Incorporated Merrill Lynch & Co.
1585 Broadway Merrill Lynch, Pierce, Fenner &
New York, New York 10036 Smith Incorporated
World Financial Center
Goldman, Sachs & Co. North Tower, 10th Floor
85 Broad Street New York, New York 10281
New York, New York 10004
Salomon Brothers Inc
J.P. Morgan Securities Inc. Seven World Trade Center
60 Wall Street New York, New York 10048
New York, New York 10260
Lehman Brothers
Lehman Brothers Inc. (including its affiliates
Lehman Goverment Securities, Inc.)
3 World Trade Center
New York, New York 10285
Dear Sirs:
Norwest Corporation, a Delaware corporation (the "Company"), confirms
its agreement with Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., J.P.
Morgan Securities Inc., Lehman Brothers Inc. (including its affiliate Lehman
Government Securities, Inc.), Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Brothers Inc (individually, an "Agent",
and collectively, the "Agents") with respect to the issue and sale by the
Company of its Medium-Term Notes described herein (the "Notes"). The Notes are
to be issued pursuant to an indenture (the "Indenture") dated as of December 15,
1993, as amended from time to time, between the Company and The First National
Bank of Chicago, as trustee (the "Trustee"). As of the date hereof, the Company
has authorized the issuance and sale of up to U.S. $5,000,000,000 aggregate
initial public offering price (or its equivalent, based upon the applicable
exchange rate at the time of issuance, in such foreign currencies or foreign
currency units as the Company shall designate at the time of issuance) of Notes
through the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be sold through or to the
Agents pursuant to the terms of this Agreement, all as though the issuance of
such Notes were authorized as of the date hereof.
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This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and any Agent) to any Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-01737) for the registration
of securities, including the Notes, under the Securities Act of 1933, as
amended, (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939 (the "1939 Act"). Such registration statement (and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the offering of
the Notes which is not required to be filed by the Company pursuant to
Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided to the
Agents for such use.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf or through any of its affiliated entities, the
Company hereby appoints the Agents as the agents for the purpose of soliciting
purchases of the Notes from the Company by others and agrees that, except as
otherwise contemplated herein, whenever the Company determines to sell Notes
directly to any Agent as principal for resale to others, it will enter into a
Terms Agreement (hereafter defined) relating to such sale in accordance with the
provisions of Section 3(b) hereof. In addition, an Agent may offer the Notes it
has purchased as principal to other dealers and may sell Notes to any dealer at
a discount, and, unless otherwise specified in an applicable Pricing Supplement,
such discount allowed to any dealer will not be in excess of the discount to be
received by such Agent. No Notes that the Company has agreed to sell pursuant
to this Agreement shall be deemed to have been purchased and paid for or sold by
the Company until such Notes shall have been delivered to the purchaser thereof
against payment by such purchaser. The Company may accept offers to purchase
Notes through an agent other than an Agent; PROVIDED, HOWEVER, that (i) the
Company shall give each of the Agents notice of its decision to accept such an
offer to purchase Notes promptly following such acceptance, and (ii) any such
other agent shall agree to be bound by and subject to the terms and conditions
of this Agreement binding on the Agents (including, but not limited to, the
commission schedule set forth on Schedule A).
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(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS.
Upon receipt of instructions from the Company, each of the Agents will use its
reasonable efforts to solicit purchases of such principal amount of the Notes as
the Company and such Agent shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will
have no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of such
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting purchases of the Notes on behalf of the Company and in performing its
other obligations hereunder (other than with respect to any purchase by any
Agent as principal pursuant to a Terms Agreement), each Agent shall act solely
as agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, PROVIDED, HOWEVER, that such Agent shall not have any liability to the
Company in the event any such purchase is not consummated for any reason. If
the Company shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Company shall (i) hold such Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) notwithstanding such default, pay to such Agent any
commission to which it would be entitled in connection with such sale. The
Agents shall not have any obligation to purchase Notes from the Company as
principal, but any Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by an Agent as principal shall be made in
accordance with Section 3(b) hereof.
(d) RELIANCE. The Company and the Agents agree that any Notes
the placement of which any Agent arranges shall be placed by such Agent, and any
Notes purchased by such Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
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SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through such Agent as agent or to such Agent as
principal), as of the date of each delivery of Notes (whether through such Agent
as agent or to such Agent as principal) (the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. At the time the
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the 1939 Act and the rules and regulations of
the SEC promulgated thereunder. The Registration Statement, at the
time it became effective, did not, and at each time thereafter at
which any amendment to the Registration Statement becomes effective or
any Annual Report on Form 10-K is filed by the Company with the SEC
and as of each Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus as of the date hereof does not, and as of
each Representation Date will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any of the Agents expressly for
use in the Registration Statement or Prospectus.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other information
in the Prospectus, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(iii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE NOTES. This Agreement and any Terms Agreement have
been duly authorized and, upon execution and delivery by each Agent,
will be a valid and binding agreement of the Company; the Indenture
has been duly authorized and, upon execution and
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delivery by the Trustee, will be a valid and binding obligation of the
Company enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of creditors'
rights generally, or by general equity principles, and except further as
enforcement thereof may be limited by (A) requirements that a claim with
respect to any Notes denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or (B) governmental authority to
limit, delay or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; the Notes have been
duly and validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture against payment of the
consideration therefor specified in the Prospectus or pursuant to any Terms
Agreement, the Notes will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity principles,
and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign currency or currency unit judgment in
respect of such claim) be converted into U.S. dollars at a rate or exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes and the Indenture will be
substantially in the form heretofore delivered to each Agent and conform in
all material respects to all statements relating thereto contained in the
Prospectus; and the Notes will be entitled to the benefits provided by the
Indenture.
(iv) FLORIDA BLUE SKY DISCLOSURE. The Company has complied with
all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida).
(v) INVESTMENT COMPANY ACT OF 1940. Neither the Company nor any
subsidiary of the Company is subject to registration or regulation under
the Investment Company Act of 1940, as amended.
(vi) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth in
the Registration Statement or Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its subsidiaries, which might,
in the opinion of the Company, result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or might materially affect the properties or assets thereof;
and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as
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exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to any Agent or to counsel for
any Agent in connection with an offering of Notes or the sale of Notes to such
Agent as principal shall be deemed a representation and warranty by the Company
to such Agent as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
SECTION 3. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, each Agent agrees, as an agent of the Company, to use its reasonable
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, such Agent will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised such Agent that such
solicitation may be resumed.
The Company agrees to pay the presenting Agent (or jointly to two or
all Agents if such solicitation is jointly made) on the settlement date
applicable to such Note a commission, in the form of a discount, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by such Agent as set forth in Schedule A
hereto.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the applicable Agent and set
forth in a pricing supplement to the Prospectus (a "Pricing Supplement") to be
prepared following each acceptance by the Company of an offer for the purchase
of Notes. Except as may be otherwise provided in such a Pricing Supplement, the
Notes will be issued in denominations of U.S. $1,000 or any larger amount that
is an integral multiple of U.S. $1,000. All Notes sold through any Agent as
agent will be sold at 100% of their principal amount unless otherwise agreed to
by the Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such Notes
to, and the purchase and reoffering thereof by, such Agent. Each such separate
agreement (which may be an oral agreement, if confirmed in writing by facsimile
transmission or otherwise) between an Agent and the Company is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each
reference contained herein to "this Agreement" shall be deemed to
include any applicable Terms Agreement between the Company and an Agent. Each
such Terms Agreement, whether oral or in writing, shall be with respect to such
information (as applicable) as is specified in Exhibit A hereto. An Agent's
commitment to purchase Notes as principal pursuant to any Terms Agreement shall
be deemed to
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have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. An Agent
may utilize a selling or dealer group in connection with the resale of the Notes
purchased. Such Terms Agreement shall also specify the requirements for the
officer's certificate, opinions of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES. The Company and the Agents
hereby agree to the Administrative procedures with respect to the sale of Notes
set forth in Annex A hereto (the "Procedures"). Each of the Agents and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with each Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify each
Agent immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give
each Agent notice of its intention to file or prepare any additional
registration statement with respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus (other than an amendment or supplement providing solely for a change
in the interest rates of Notes), whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, and will furnish each Agent with copies
of any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Company will deliver to each Agent as many signed and conformed copies of
the Registration Statement (as
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originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as such Agent may reasonably request. The Company
will furnish to each Agent as many copies of the Prospectus (as amended or
supplemented) as such Agent shall reasonably request so long as the Agent is
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will
prepare, with respect to any Notes to be sold through or to any Agent pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agent and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
SEC on the fifth business day after the date on which such Pricing Supplement is
first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (k) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Agents or
counsel for the Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall
be given, and confirmed in writing, to each Agent to cease the solicitation of
offers to purchase the Notes in such Agent's capacity as agent and to cease
sales of any Notes such Agent may then own as principal pursuant to a Terms
Agreement, and the Company will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (k) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to each Agent, confirmed in writing.
(g) EARNINGS STATEMENTS. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
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(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as any Agent may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided. The Company will
promptly advise each Agent of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Notes for sale in any
such state or jurisdiction or the initiating or threatening of any proceeding
for such purpose and will promptly notify each Agent if at any time the Company
must make or amend a disclosure required by Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida).
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. If required pursuant to the terms of a
Terms Agreement with any Agent, between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the Company will not,
without such Agent's prior consent, offer or sell, or enter into any agreement
to sell, any debt securities of the Company with terms substantially similar to
those of the Notes which are the subject of such Terms Agreement (other than the
Notes that are to be sold pursuant to such Terms Agreement and commercial paper
in the ordinary course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this Section
with respect to any Agent during any period from the time (i) such Agent shall
have suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company and (ii) such Agent shall not then hold
any Notes as principal purchased pursuant to a Terms Agreement, to the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with such Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of each Agent to solicit offers to purchase the
Notes as agent of the Company, the obligations of any purchasers of the Notes
sold through any Agent as agent, and any obligation of any Agent to purchase
Notes pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
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(a) LEGAL OPINIONS. On the date hereof, each Agent shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to such Agent:
1. OPINION OF COMPANY COUNSEL. The opinion of Stanley S.
Stroup, Executive Vice President and General Counsel of the Company,
to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and
to conduct its business as described in the Registration
Statement, and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as
amended; and each of Norwest Bank Minnesota, National
Association ("Norwest Bank Minnesota"), and Norwest Bank
Iowa, National Association ("Norwest Bank Iowa"), is a
national banking association duly chartered and is in
good standing under the National Bank Act; and Norwest
Financial Services, Inc. ("Norwest Financial" and
together with Norwest Bank Minnesota and Norwest Bank
Iowa, the "Significant Subsidiaries") is duly organized
and validly existing in good standing under the laws of
the jurisdiction of its incorporation.
(iii) Each of the Company and each Significant
Subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify and be in good standing would not
have a material adverse effect on the business,
condition or properties of the Company and its
subsidiaries, taken as a whole.
(iv) All of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and (except
as provided in 12 U.S.C. Section 55) non-assessable, and
is owned by the Company, free and clear of any perfected
security interest and, to the best of such counsel's
knowledge of any other security interests, claims, liens
or encumbrances.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
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(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized,
executed and delivered by the Trustee) constitutes a
legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors'
rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign
currency or foreign currency unit judgment in respect of
such claim) be converted into United States dollars at a
rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority
to limit, delay or prohibit the making of payments in
foreign currency or currency units or the making of
payments outside the United States.
(vii) The Notes are in due and proper form and
have been duly established in conformity with
Section 301 of the Indenture. When the specific terms
of an issue of Notes have been fixed by an authorized
officer of the Company by executing and delivering to
the Trustee an authentication certificate supplemental
to an officers' certificate, such Notes will be duly
authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor,
will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights generally or by general equity
principles, and except further as enforcement thereof
may be limited by (A) requirements that a claim with
respect to any Notes denominated other than in U.S.
dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit
the making of payments in foreign currency or currency
units or payments outside the United States, and each
holder of Notes will be entitled to the benefits of the
Indenture.
(viii) The statements in the Prospectus under
the captions "Description of Debt Securities", "Plan of
Distribution" and "Description of Notes", insofar as
they purport to summarize certain
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provisions of documents specifically referred to therein, are
accurate summaries of such provisions.
(ix) The Indenture is qualified under the 1939
Act.
(x) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the
1933 Act or proceedings therefor initiated or, to the
best of such counsel's knowledge, threatened by the SEC;
and any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b) under the 1933 Act.
(xi) At the time the Registration Statement
became effective, the Registration Statement (other than
financial statements, schedules and other financial data
included in the documents incorporated by reference
therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the
regulations under each of those Acts.
(xii) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein.
(xiii) The execution and delivery of this
Agreement or of the Indenture, or the consummation by
the Company of the transactions contemplated by this
Agreement and the Notes and the incurrence of the
obligations therein contemplated, will not conflict with
or constitute a breach of, or default under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
or any Significant Subsidiary pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or
other instrument known to such counsel and to which the
Company or any Significant Subsidiary is a party or to
which any of the property or assets of the Company or
any Significant Subsidiary is subject, or any law,
administrative regulation or administrative or court
decree known to such counsel to be applicable to the
Company of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the
Company; nor will such action result in any violation of
the provisions of the charter or by-laws of the Company.
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(xiv) To the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or
documents required to be described or referred to in the
Registration Statement or to be filed as exhibits
thereto other than those described or referred to
therein or filed or incorporated by reference as
exhibits thereto, the descriptions thereof or references
thereto are correct.
(xv) No consent, approval, authorization, order
or decree of any court or governmental agency or body
including the SEC is required for the consummation by
the Company of the transactions contemplated by this
Agreement, except such as may be required under the 1933
Act, the 1939 Act, the 1933 Act Regulations or state
securities laws.
(xvi) Each document filed pursuant to the 1934
Act and incorporated by reference in the Prospectus
complied when filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations
thereunder (other than financial statements, schedules
and other financial data included therein, as to which
no opinion need be rendered).
2. OPINION OF COUNSEL TO THE AGENTS. The opinion of Sullivan &
Cromwell, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i), (v), (vi), (vii), (ix),
(x) and (xi) above.
3. In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Mr. Stroup and Sullivan & Cromwell shall each
additionally state that nothing has come to his or their attention
that would lead him or them to believe that the Registration Statement
(other than financial statements, schedules or other financial data
included or incorporated by reference therein, as to which no
statement need be made), at the time it became effective, and if an
amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the Company with the SEC subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in connection
with a Terms Agreement pursuant to Section 7(c) hereof) at the date of
any Terms Agreement and at the Settlement Date with respect thereto,
as the case may be, contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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(b) OFFICER'S CERTIFICATES. At the date hereof the Agents shall
have received a certificate of the Chairman of the Board, the President or any
Executive Vice President and the principal financial or accounting officer of
the Company, PROVIDED, HOWEVER, that no person shall sign such certificate in
more than one official capacity, dated as of the date hereof, to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, general business affairs
or business prospects of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the SEC.
(c) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in
form and substance satisfactory to the Agents, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel to the Agents shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of any Agent, any applicable Terms Agreement) may be terminated by any
Agent insofar as this Agreement relates to such Agent by notice to the Company
at any time and any such termination shall be without liability of any party to
any other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth under "Parties" of Section 15 hereof shall remain in
effect.
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SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through any Agent as agent shall be made by
the Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the presenting Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by the Company of an offer for the purchase of Notes, and each
delivery of Notes to any Agent pursuant to a Terms Agreement, shall be deemed to
be an affirmation that the representations and warranties of the Company
contained in this Agreement and in any certificate theretofore delivered to such
Agent pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser or
his agent, or to such Agent, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement, and other than by an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes) or
there is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively to
the issuance of debt securities other than the Notes unless requested by an
Agent) or (if required pursuant to the terms of a Terms Agreement) the Company
sells Notes to any Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished to each Agent forthwith a certificate dated the
date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form satisfactory to each Agent to the effect that the statements contained
in the certificate referred to in Section 5(b) hereof which were last furnished
to each Agent are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
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(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or solely for the inclusion of additional financial
information, and other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of debt securities other than the Notes unless requested by an Agent), or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
any Agent pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to each Agent and to counsel to the Agents a written
opinion of the General Counsel of the Company, or other counsel satisfactory to
the Agents dated the date of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance satisfactory to the Agents, of the same tenor
as the opinion referred to in Section 5(a)(1) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish each
Agent with a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance). Each time that the
Company files with the SEC an Annual Report on Form 10-K that is incorporated by
reference into the Prospectus, counsel to the Agents shall furnish to each Agent
a written opinion dated the date of such filing of the same tenor as the opinion
referred to in Section 5(a)(3) hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion; or in lieu of such opinion, counsel last
furnishing such opinion to the Agents shall furnish each Agent with a letter to
the effect that the Agents may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information, or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to any Agent pursuant to a Terms Agreement,
the Company shall cause KPMG Peat Marwick LLP forthwith to furnish each Agent a
letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same general tenor as the letter referred to
in Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and with
such changes as may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the Company;
PROVIDED, HOWEVER, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as of and for a
fiscal quarter, KPMG Peat Marwick LLP may limit the scope of such letter to the
unaudited financial
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statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agents, such letter should cover
such other information.
SECTION 8. INDEMNIFICATION.
INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls each Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company by the Agents expressly for use in the Registration
Statement or the Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the Agents)
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees, severally
and not jointly, to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or
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any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Agent expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) GENERAL. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this
Section 8, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Agents that
are indemnified parties in the case of parties to be indemnified pursuant to
paragraph (a) of this Section 8 and by the Company in the case of parties to be
indemnified pursuant to paragraph (b) of this Section 8. An indemnifying party
shall not be liable for any settlement of any proceeding effected without its
prior written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
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SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and each Agent shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and each Agent, as incurred, in such
proportions that each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by
such Agent to the date of such liability bears to the total sales price from the
sale of Notes sold to or through such Agent to the date of such liability, and
the Company is responsible for the balance; PROVIDED, HOWEVER, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls any Agent within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this
Agreement;
(c) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any Calculation
Agent or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the transactions
contemplated hereby;
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Agents in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
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(g) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to
the Agent of copies of the Indenture and all supplements and
amendments thereto;
(i) any fees charged by rating agencies for the rating of
the Notes;
(j) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in
the Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding
any Terms Agreement) may be terminated for any reason, at any time, by either
the Company or any Agent (insofar as this Agreement relates to such Agent) upon
the giving of 30 days' written notice of such termination to the other party
hereto.
(b) TERMINATION OF A TERMS AGREEMENT. Any Agent may terminate
any Terms Agreement, immediately upon notice to the Company, at any time prior
to the Settlement Date relating thereto (i) if there shall have occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities involving the United States the effect of
which is such as to make it, in the judgment of such Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (ii) if
trading in any securities of the Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either the
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American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York authorities or
if a banking moratorium shall have been declared by the relevant authorities in
the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iii) if the rating assigned by
any nationally recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company, or (iv) if there has occurred any
material adverse change in the condition, financial or otherwise, in the
business affairs or business prospects of the Company and its subsidiaries,
taken as a whole, whether or not in the ordinary course of business.
(c) GENERAL. In the event of any such termination, none of the
parties will have any liability to the other parties hereto, except that
(i) each Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination
(a) any Agent shall own any Notes purchased pursuant to a Terms Agreement with
the intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(g) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand, by
mail or by telex, telecopier or telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Norwest Corporation
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479
Attention: Treasurer
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If to the Agents:
Morgan Stanley & Co. Incorporated Lehman Brothers Inc.
1585 Broadway, 2nd Floor 3 World Trade Center, 12th Floor
New York, New York 10036 New York, New York 10285
Attention: Manager - Continuously Attention: Roger Blissett
Offered Products
with a copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway, 34th Floor
New York, New York 10036
Attention: Peter Cooper -- Investment Banking
Information Center
Merrill Lynch & Co.
Goldman, Sachs & Co. Merrill Lynch, Pierce, Fenner &
85 Broad Street Smith Incorporated
New York, New York 10004 World Financial Center
Attention: Medium-Term Note Desk North Tower, 10th Floor
New York, New York 10281
Attention: MTN Product Management
J.P. Morgan Securities Inc. Salomon Brothers Inc
60 Wall Street Seven World Trade Center
New York, New York 10260 New York, New York 10048
Attention: Medium-Term Note
Department
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Company against any Agent in
connection with or arising under this Agreement shall be brought solely in the
state or federal court of appropriate jurisdiction located in the Borough of
Manhattan, The City of New York.
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SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon
each Agent and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
-23-
<PAGE>
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agent and the Company in accordance with its terms.
Very truly yours,
NORWEST CORPORATION
By:
------------------------------------------
Name:
Title:
Accepted:
Morgan Stanley & Co. Incorporated
By:
-------------------------------------
Name:
Title:
- ----------------------------------------
(Goldman, Sachs & Co.)
J.P. Morgan Securities Inc.
By:
-------------------------------------
Name:
Title:
-24-
<PAGE>
Lehman Brothers Inc.
By:
-------------------------------------
Name:
Title:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:
-------------------------------------
Name:
Title:
Salomon Brothers Inc
By:
-------------------------------------
Name:
Title:
-25-
<PAGE>
SCHEDULE A
As compensation for the services of any Agent hereunder, the Company
shall pay it, on a discount basis, a commission for the sale of each Note equal
to the principal amount of such Note multiplied by the appropriate percentage
set forth below:
<TABLE>
<CAPTION>
PERCENT OF
----------
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year. . . . . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . . . . . .150
From 18 months to less than 2 years. . . . . . . . . . . . . . . .200
From 2 years to less than 3 years. . . . . . . . . . . . . . . . .250
From 3 years to less than 4 years. . . . . . . . . . . . . . . . .350
From 4 years to less than 5 years. . . . . . . . . . . . . . . . .450
From 5 years to less than 7 yeears . . . . . . . . . . . . . . . .500
From 7 years to less than 10 years . . . . . . . . . . . . . . . .600
From 10 years to less than 15 years. . . . . . . . . . . . . . . .625
From 15 years to less than 20 years. . . . . . . . . . . . . . . .700
From 20 years to 30 years. . . . . . . . . . . . . . . . . . . . .750
More than 30 years . . . . . . . . . . . . . . . . . . . . . . . As agreed at
the time of
sale
</TABLE>
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent
and the Company pursuant to each Terms Agreement:
Principal Amount: $
-----------------------
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis applicable to each
interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent
Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and Original Issue
Discount Fixed Rate Notes, any terms required to be established
by the Internal Revenue Code of 1986, as amended
If Foreign Currency Notes:
Interest rate or interest rate basis
Authorized denominations (including integral multiples) in
the specified currency
Exchange rate agent
Specified currency account (if holder elects to receive
payments in other than U.S. dollars by wire transfer)
<PAGE>
If Redeemable:
Redemption Date
Redemption Prices
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ___%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement
A-2
<PAGE>
Annex A Intentionally Omitted
<PAGE>
CUSIP NO. PRINCIPAL AMOUNT:
REGISTERED NO.
NORWEST CORPORATION
MEDIUM-TERM FIXED RATE NOTE, SERIES J
Due Nine Months or More From Date of Issue
/ / Check this box if the Note is an Amortizing Note.
/ / Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
[Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
[If applicable, this Note will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % INTEREST RATE PER ANNUM:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
MATURITY DATE: INTEREST PAYMENT DATES: REDEEMABLE ON OR AFTER
(AT OPTION OF THE COMPANY):
INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION OPTIONAL REPAYMENT DATES:
PERCENTAGE REDUCTION:
SPECIFIED CURRENCY (if other EXCHANGE RATE AGENT (Only AUTHORIZED DENOMINATIONS
than U.S. dollars): applicable if Specified (Only applicable if
Currency is other than Specified Currency is
U.S. dollars): other than U.S. dollars):
DEPOSITARY (Only applicable OTHER TERMS:
if this Note is a Global Note):
</TABLE>
If this Note is an Amortizing Note, installments of principal will be paid
on the dates specified below in the amounts specified below with respect to each
$1,000 original principal amount of the Note:
Amortizing Payment Dates: Amortizing Payment Amounts:
NORWEST CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to _______________________________________, or
registered assigns, the principal sum of ________________________________at the
office or agency of the Company in the Borough of Manhattan, The City of New
York or the City of Minneapolis, Minnesota, on the maturity date shown above, or
if such date is not a Market Day (as defined below), the next succeeding Market
Day (the "Stated Maturity"), in such coin or currency specified above as at the
time of payment shall be legal tender for the payment of public and private
debts, PROVIDED, HOWEVER, that if this Note is specified above to be an
Amortizing Note, the installments of principal on this Note will be paid,
without presentation of this Note, on each Amortizing Payment Date specified
above, to the
-2-
<PAGE>
person in whose name this Note is registered at the close of business on the
fifteenth calendar day (whether or not a Market Day) next preceding such
Amortizing Payment Date (the "Amortizing Record Date"), in the respective amount
per $1,000 principal amount of this Note specified above (the "Amortizing
Payment Amount") in respect of such Amortizing Payment Date; and to pay interest
on the principal amount hereof at the rate per annum (computed on the basis of a
360-day year of twelve 30-day months) shown above, in like coin or currency,
semi-annually on each Interest Payment Date set forth above from and after the
date of this Note and at Maturity until payment of the principal amount hereof
has been made or duly provided for, PROVIDED, HOWEVER, that the Company will
make such payments in respect of non-U.S. dollar denominated Notes in U.S.
dollars determined as set forth hereinbelow; PROVIDED, HOWEVER, that payments of
principal of, premium, if any, and interest on Notes denominated in other than
U.S. dollars will nevertheless be made in the Specified Currency at the election
of the holder as provided herein (unless the Company is unable to make such
payments in the Specified Currency due to the imposition of exchange controls or
other circumstances beyond the control of the Company as provided herein).
Unless this Note is a Note which has been issued upon transfer of, in exchange
for, or in replacement of, a predecessor Note, interest on this Note shall
accrue from the Original Issue Date indicated above. If this Note has been
issued upon transfer of, in exchange for, or in replacement of, a predecessor
Note, interest on this Note shall accrue from the last Interest Payment Date to
which interest was paid on such predecessor Note or, if no interest was paid on
such predecessor Note, from the Original Issue Date indicated above. The first
payment of interest on a Note originally issued and dated between a Record Date
(as defined below) and an Interest Payment Date will be due and payable on the
Interest Payment Date following the next succeeding Record Date to
-3-
<PAGE>
the registered owner on such next succeeding Record Date. Subject to certain
exceptions provided in the Indenture referred to hereinbelow, the interest so
payable on any Interest Payment Date will be paid to the person in whose name
this Note is registered at the close of business on the day (whether or not a
Market Day) fifteen calendar days next preceding such Interest Payment Date
(each such date a "Record Date"), and interest payable at Maturity will be paid
to the person to whom said principal sum is payable.
Except as set forth below, payment of interest on this Note due on any
Interest Payment Date and payment of principal on this Note due on any
Amortizing Payment Date to be made in U.S. dollars will be payable at the
corporate trust office of the Trustee (as hereinafter defined) or at the
corporate trust office of Norwest Bank Minnesota, N.A., as paying agent (the
"Paying Agent"), PROVIDED that, at the option of the Company, payment may be
made by check mailed to the person entitled thereto at his or her last address
as it appears in the Security Register or, in the case of a holder of
$10,000,000 or more in aggregate principal amount of Notes, by wire transfer to
such account as may have been designated by such holder as set forth herein.
Payment of the principal of, premium, if any, and interest, if any, on this Note
due to the holder hereof at Maturity to be made in U.S. dollars will be paid, in
immediately available funds, upon presentation of this Note at the corporate
trust office of the Trustee in The City of New York or the corporate trust
office of the Paying Agent in the City of Minneapolis, Minnesota, provided that
this Note is presented for surrender to the Paying Agent in time for the Paying
Agent to make such payment in such funds in accordance with its normal
procedures.
If this Note is a Global Note, the total amount of any principal,
premium, if any, and interest due on this Note representing one or more
Book-Entry Notes on any Interest Payment Date or Amortizing Payment Date or at
Maturity will be made available to the Trustee on such
-4-
<PAGE>
date. As soon as possible thereafter, the Trustee will make such payments to
the Depositary. The Depositary will allocate such payments to each Book-Entry
Note represented by the Global Note and make payments to the owners or holders
thereof in accordance with its existing operating procedures.
Payments of interest to be made in a Specified Currency other than
U.S. dollars (other than interest on this Note due to the holder hereof at
Maturity) will be paid by check mailed to the address of the holder entitled
thereto as it appears in the Security Register, such check to be drawn on a bank
office located outside the United States. Payment in a Specified Currency other
than U.S. dollars of any Amortizing Payment Amount will be paid by check mailed
to the address of the holder entitled thereto as it appears in the Security
Register, such check to be drawn on a bank office located outside the United
States. Payment in a Specified Currency other than U.S. dollars of the
principal of and premium, if any, and interest on this Note due to the holder
hereof at Maturity will be made by wire transfer of immediately available funds
to a designated account maintained in the country issuing the Specified Currency
as shall have been designated at least sixteen days prior to Maturity by the
registered holder of this Note at Maturity, provided that this Note is presented
for surrender to the Paying Agent in time for the Paying Agent to make such
payment in such funds in accordance with its normal procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Paying Agent at its corporate trust
office and, unless revoked by written notice to the Paying Agent received by the
Paying Agent on or prior to the Record Date immediately preceding the applicable
Interest Payment Date, the Amortizing Record Date immediately preceding the
applicable Amortizing Payment Date or the sixteenth calendar day
-5-
<PAGE>
preceding Maturity shall remain in effect with respect to any further payments
with respect to this Note payable to such holder.
Unless otherwise specified above under "Other Terms", payments of
principal of and any premium and interest on any Note denominated in a Specified
Currency other than U.S. dollars will be converted by the Exchange Rate Agent to
U.S. dollars in the manner set forth below, PROVIDED, HOWEVER, that the holder
of any Note denominated in a Specified Currency other than U.S. dollars may
elect to receive the Specified Currency by transmitting a written request for
such payment to the corporate trust office of the Paying Agent on or prior to
the Record Date immediately preceding any Interest Payment Date, the Amortizing
Record Date immediately preceding the applicable Amortizing Payment Date or at
least sixteen calendar days prior to Maturity. Such request may be mailed or
hand delivered or sent by cable or telex or other form of facsimile
transmission. The holder of any such Note may elect to receive payment in the
Specified Currency for all principal, premium, if any, and interest payments and
need not file a separate election for each payment. Any such election will
remain in effect until revoked by written notice to the Paying Agent, but
written notice of any such revocation must be received by the Paying Agent on or
prior to the Record Date immediately preceding the applicable Interest Payment
Date, the Amortizing Record Date immediately preceding the applicable Amortizing
Payment Date or the sixteenth calendar day preceding Maturity.
If this Note is a Global Note as specified above, a beneficial owner
of this Note denominated in a Specified Currency electing to receive payments of
principal or any premium or interest in a Specified Currency other than U.S.
dollars must notify the participant through which its interest is held on or
prior to the applicable Regular Record Date, in the case of a payment of
interest, and on or prior to the sixteenth day prior to Maturity, in the case of
principal or premium,
-6-
<PAGE>
of such beneficial owner's election to receive all or a portion of such payment
in a Specified Currency. Such participant must notify the Depositary of such
election on or prior to the third Market Day after such Regular Record Date.
The Depositary will notify the Paying Agent of such election on or prior to the
fifth Market Day after such Regular Record Date. If complete instructions are
received by the participant and forwarded by the participant to the Depositary,
and by the Depositary to the Paying Agent, on or prior to such dates, the
beneficial owner will receive payments in the Specified Currency.
If a payment with respect to this Note cannot be made by wire transfer
because the required designation has not been received by the Paying Agent on or
before the requisite date or for any other reason, a notice will be mailed to
the holder at its registered address requesting a designation pursuant to which
such wire transfer can be made and, upon the Paying Agent's receipt of such
designation, such payment will be made within five Market Days of such receipt.
The Company will pay any administrative costs imposed by banks in connection
with making payments by wire transfer, but any tax, assessment or governmental
charge imposed upon payments will be borne by the holder or holders of this Note
in respect of which payments are made.
All percentages resulting from any calculation referred to herein will
be rounded, if necessary, to the nearest one hundred-thousandth of one
percentage point, with five one-millionths of one percentage point rounded
upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)
and 9.876544% (or .09876544) being rounded to 9.87654% (or .0987654)); and all
currency or currency unit amounts used in or resulting from such calculations on
this Note will be rounded to the nearest one-hundredth of a unit (with .005 of a
unit being rounded upward).
-7-
<PAGE>
Any payment on this Note due on any day which is not a Market Day need
not be made on such day, but may be made on the next succeeding Market Day with
the same force and effect as if made on the due date and no interest shall
accrue for the period from and after such date.
IF THIS NOTE IS A GLOBAL NOTE AS SPECIFIED ABOVE, THE FOLLOWING LEGEND
IS APPLICABLE: "THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR".
"Market Day" means (a) with respect to any Note, any day that is not a
Saturday or Sunday and that is not a day on which banking institutions generally
are authorized or obligated by law or executive order to close in the City of
Minneapolis, Minnesota or The City of New York, and (b) only if this Note is
denominated in a Specified Currency other than U.S. dollars, any day that is
also, in the principal financial center of the country of the currency in which
this Note is denominated, not a day on which banking institutions generally are
authorized or obligated by law or executive order to close and (d) only if this
Note is denominated in European Currency Units ("ECUs"), is also an "ECU
Settlement Day" ("ECU Settlement Day" means any day that (i) is not either (A) a
Saturday or a Sunday or (B) a day that is designated as an ECU Non-Settlement
Day by the ECU Banking Association in Paris or otherwise generally regarded in
the ECU interbank market as a day on which payments on ECUs shall not be made,
and (ii) is a day on which payments in the ECU can be settled by commercial
banks and in foreign exchange markets in the place in which the relevant account
for payment is located).
-8-
<PAGE>
Additional provisions of this Note are contained following the
signature lines and Certificate of Authentication hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to hereinbelow.
-9-
<PAGE>
IN WITNESS WHEREOF, NORWEST CORPORATION has caused this instrument to
be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF NORWEST CORPORATION
AUTHENTICATION
This Note is one of a
designated series of
Debt Securities described
in the Indenture referred By
to hereinbelow ---------------------------------------------
-------------------------, --------------------
THE FIRST NATIONAL BANK OF
CHICAGO,
as Trustee,
Attest:
By
----------------------------
Authorized Officer ---------------------------------------------
, Secretary
----------------------------------
OR
NORWEST BANK MINNESOTA, N.A., [SEAL]
as Authenticating Agent
for the Trustee
By
----------------------------
Authorized Officer
-10-
<PAGE>
NORWEST CORPORATION
MEDIUM-TERM FIXED RATE NOTE, SERIES J
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (the "Debt Securities"), all
issued or to be issued under and pursuant to an indenture dated as of December
15, 1993 (the "Indenture"), with The First National Bank of Chicago, as Trustee
(the "Trustee"), to which Indenture reference is hereby made for a description
of the rights, duties and immunities thereunder of the Trustee and the rights
thereunder of the holders of the Debt Securities. As provided in the Indenture,
the Debt Securities may be issued in one or more series, which different series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to
different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
events of default, and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series of the Debt Securities, which series is
limited to an aggregate initial offering price of $5,000,000,000, or the
equivalent in foreign currencies or foreign currency units, designated as the
Medium-Term Notes, Series J (the "Notes"), of the Company. The Notes may mature
at different times, bear interest, if any, at different rates, be redeemable at
different times or not at all, be repayable at the option of the holder at
different times or not at all, be issued at an original issue discount, be
extendable and be denominated in different currencies.
If this Note is denominated in a Specified Currency other than U.S.
dollars, any U.S. dollar amount to be received by a holder of this Note will be
based on the highest bid
-11-
<PAGE>
quotation in The City of New York received by the Exchange Rate Agent specified
above at approximately 11:00 A.M., New York City time, on the second Market Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of which may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for U.S. dollars for settlement on such payment date, in
the aggregate amount of the Specified Currency payable to all holders of Notes
receiving U.S. dollar payments on such payment date and at which the applicable
dealer commits to execute a contract. If three such bid quotations are not
available, payments will be made in the Specified Currency. All currency
exchange costs associated with any payments in U.S. dollars will be borne by the
holder of the Note by deductions from such payments.
If the principal of, premium, if any, or interest on this Note is
payable in a Specified Currency other than U.S. dollars and, due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, the Specified Currency is not available at the time of any scheduled
payment of principal, premium or interest to be made in the Specified Currency,
then the Company shall be entitled to satisfy its obligations hereunder by
making such payment in U.S. dollars. Any such payment shall be made on the
basis of the Market Exchange Rate on the second Market Day prior to such
payment, or if such Market Exchange Rate is not then available, on the basis of
the most recently available Market Exchange Rate or as otherwise indicated above
under "Other Terms". The Market Exchange Rate for any Specified Currency means
the noon buying rate in The City of New York for cable transfer for such
Specified Currency as certified for customs purposes by (or if not so certified,
as otherwise determined by) the Federal Reserve Bank of New York. Any payment
under such circumstances in U.S. dollars
-12-
<PAGE>
where required payment is in a Specified Currency will not constitute an Event
of Default under the Indenture.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal hereof
may be declared, and upon such declaration shall become, due and payable in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Debt Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the holders of two-thirds in principal amount of the Debt
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting (i) the holders of two-thirds in principal
amount of the Debt Securities of each series at the time Outstanding, on behalf
of the holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and (ii) the holders of a
majority in principal amount of the Debt Securities of each Series at the time
Outstanding, on behalf of the holders of all Debt Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this Note and of any
Note
-13-
<PAGE>
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
If so provided above under the heading "Redeemable on or after (at
Option of the Company)", this Note may be redeemed by the Company on and after
the date so indicated. On and after the date, if any, from which this Note may
be redeemed, this Note may be redeemed in whole or in part, at the option of the
Company, at a redemption price equal to the product of the principal amount of
this Note to be redeemed multiplied by the Redemption Percentage. The
Redemption Percentage shall initially equal the Initial Redemption Percentage
specified above, and shall decline at each anniversary of the initial date that
this Note is redeemable by the amount of the Annual Redemption Percentage
Reduction specified above, until the Redemption Percentage is equal to 100%.
If so provided above, this Note will be repayable in whole or in part
in increments of $1,000 or, in the case of non-U.S. dollar denominated Notes, of
an amount equal to the integral multiples referred to under the heading
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination) provided that the remaining principal
amount of any Note surrendered for partial repayment shall be at least $1,000
or, in the case of non-U.S. dollar denominated Notes, the minimum Authorized
Denomination referred to above, on any "Optional Repayment Date" specified
above, at the option of the holder, at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the repayment date. In order for the
exercise of the option to be effective and the Notes to be repaid, the Company
must receive at the applicable address of the Paying Agent set forth below or at
such other place or places of which the Company shall from time to time notify
the holder of the within Note, on or before the thirtieth, but not earlier than
the forty-fifth calendar day, or, if such day is not a Market Day, the
-14-
<PAGE>
next succeeding Market Day, prior to the repayment date, either (i) this Note,
with the form below entitled "Option to Elect Repayment" duly completed, or (ii)
a telegram, telex, facsimile transmission, or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the holder of this Note, (b) the
principal amount of this Note and the amount of this Note to be repaid, (c) a
statement that the option to elect repayment is being exercised thereby, and (d)
a guarantee stating that the Company will receive this Note, with the form below
entitled "Option to Elect Repayment" duly completed, not later than five Market
Days after the date of such telegram, telex, facsimile transmission or letter
(and this Note and form duly completed are received by the Company by such fifth
Market Day). Any such election shall be irrevocable. The address to which such
deliveries are to be made is Sixth and Marquette, Minneapolis, Minnesota 55479
(or, at such other place as the Company shall notify the holders of the Notes).
All questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company, whose
determination will be final and binding.
The Notes are issuable in global or definitive form without coupons
in denominations of $1,000 and integral multiples thereof or, if the Specified
Currency is other than U.S. dollars, in the denominations indicated above. Upon
due presentment for registration of transfer of this Note at the corporate trust
office of the Trustee in the Borough of Manhattan, The City of New York or at
the corporate trust office of the Paying Agent in the City of Minneapolis,
Minnesota, a new Note or Notes in authorized denominations in the Specified
Currency for an equal aggregate principal amount and like interest rate and
Stated Maturity will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture and to the
-15-
<PAGE>
limitations described below with respect to Global Notes, if applicable, without
charge except for any tax or other governmental charge imposed in connection
therewith.
If this Note is a Global Note (as specified above), this Note is
exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form and so notifies the Trustee or (z) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing. If this
Note is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for definitive Notes in registered form, bearing interest (if any)
at the same rate or pursuant to the same formula, having the same date of
issuance, redemption provisions, if any, Specified Currency, Stated Maturity and
other terms and of differing denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the places, at the respective times, at the rate and in the currency herein
prescribed.
The Company, the Trustee and the Paying Agent may deem and treat the
registered holder hereof as the absolute owner of this Note at such holder's
address as it appears on the Security Register of the Company as kept by the
Trustee or duly authorized agent of the Company (whether or not this Note shall
be overdue), for the purpose of receiving payment of or on account hereof and
for all other purposes, and none of the Company, the Trustee or Paying Agent
shall be affected by any notice to the contrary. All payments made to or upon
the order of such registered
-16-
<PAGE>
holder shall, to the extent of the sum or sums paid, effectually satisfy and
discharge liability for moneys payable on this Note.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any Note, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such personal liability of every such incorporator, stockholder,
officer and director, as such, being expressly waived and released by the
acceptance hereof and as a condition of and as part of the consideration for the
issuance of this Note.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
-17-
<PAGE>
--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at _______________________________
(please print or typewrite name and address of the undersigned).
For this Note to be repaid the Company must receive at the applicable
address of the Paying Agent set forth above or at such other place or places of
which the Company shall from time to time notify the holder of the within Note,
on or before the thirtieth, but not earlier than the forty-fifth, calendar day,
or, if such day is not a Market Day, the next succeeding Market Day, prior to
the repayment date, (i) this Note, with this "Option to Elect Repayment" form
duly completed, or (ii) a telegram, telex, facsimile transmission, or letter
from a member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the holder of the Note, (b) the principal amount of the Note and the amount of
the Note to be repaid, (c) a statement that the option to elect repayment is
being irrevocably exercised thereby, and (d) a guarantee stating that the Note
to be repaid with the form entitled "Option to Elect Repayment" on the addendum
to the Note duly completed will be received by the Company
-18-
<PAGE>
not later than five Market Days after the date of such telegram, telex,
facsimile transmission or letter (and such Note and form duly completed are
received by the Company by such fifth Market Day).
If less than the entire principal amount of the within Note is to
be repaid, specify the portion thereof (which shall be an integral multiple
of $1,000 or, if the Note is denominated in a currency other than U.S.
dollars, of an amount equal to the integral multiples referred to above under
the heading "Authorized Denominations" (or, if no such reference is made, an
amount equal to the minimum Authorized Denomination)) which the holder elects
to have repaid: and specify the denomination or denominations (which shall be
$1,000 or an integral multiple thereof or, if the Note is denominated in a
currency other than U.S. dollars, an Authorized Denomination) of the Note or
Notes to be issued to the holder for the portion of the within Note not being
repaid (in the absence of any specification, one such Note will be issued for
the portion not being repaid): _______________________.
Date: --------------------------------------------------
-------------------- Notice: The signature to this Option to Elect
Repayment must correspond with the name as
written upon page 2 of the Note in every
particular without alteration or enlargement or
any other change whatsoever.
-19-
<PAGE>
- --------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT--___ CUSTODIAN ___
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
(State)
</TABLE>
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- -------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of NORWEST CORPORATION and does hereby irrevocably constitute
and appoint __________________________________________attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
----------------------- ----------------------------------------
----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
-20-
<PAGE>
CUSIP NO. PRINCIPAL AMOUNT:
REGISTERED NO.
NORWEST CORPORATION
MEDIUM-TERM FLOATING RATE NOTE, SERIES J
Due Nine Months or More From Date of Issue
/ / Check box if the Note is an Amortizing Note.
/ / Check box if the Note is a Global Note.
Applicable if the Note is a Global Note:
[Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
[If applicable, this Note will contain information required by the
U.S. Federal Income Tax "Original Issue Discount" rules, as that term is defined
in the Internal Revenue Code of 1986, as amended.]
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: ISSUE PRICE:
MATURITY DATE: INTEREST RATE BASIS INTEREST PAYMENT
(and, if applicable, PERIOD:
related Interest Periods):
INTEREST PAYMENT DATES: INTEREST DETERMINATION DATES: MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE: INTEREST CALCULATION DATES: INTEREST RATE RESET
PERIOD:
INTEREST RESET DATES: INITIAL INTEREST RESET SPREAD MULTIPLIER:
DATE:
SPREAD: + SPECIFIED CURRENCY EXCHANGE RATE AGENT
- (if other than U.S. dollars): (Only applicable if
Specified Currency is
other than U.S. dollars):
CALCULATION AGENT: INDEX MATURITY: REDEEMABLE ON OR AFTER
(at option of Company):
INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE REDUCTION: DATES:
SINKING FUND: AUTHORIZED DENOMINATIONS DEPOSITARY
(Only applicable if (Only applicable if this
Specified Currency is Note is a Global Note):
other than U.S. dollars):
DESIGNATED CMT MATURITY OTHER TERMS:
INDEX AND DESIGNATED TELERATE
PAGE:
(Only applicable if this Note is a
CMT Note):
</TABLE>
If this Note is an Amortizing Note, installments of principal will be
paid on the dates specified below in the amounts specified below with respect to
each $1,000 original principal amount of the Note:
Amortizing Payment Dates: Amortizing Payment Amounts:
NORWEST CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), for value
received, hereby
2
<PAGE>
promises to pay to _______________________, or registered assigns, the principal
sum of __________________ at the office or agency of the Company in the Borough
of Manhattan, The City of New York or the City of Minneapolis, Minnesota, on the
maturity date shown above, or if such date is not a Market Day (as defined
herein), the next succeeding Market Day (the "Stated Maturity"), in such coin or
currency specified above as at the time of payment shall be legal tender for the
payment of public and private debts, PROVIDED, HOWEVER, that if this Note is
specified above to be an Amortizing Note, then installments of principal on this
Note will be paid, without presentation of this Note, on each Amortizing Payment
Date specified above, to the person in whose name this Note is registered at the
close of business on the fifteenth calendar day (whether or not a Market Day)
next preceding such Amortizing Payment Date (the "Amortizing Record Date"), in
the respective amount per $1,000 principal amount of this Note specified above
(the "Amortizing Payment Amount") in respect of such Amortizing Payment Date;
and to pay interest monthly, quarterly, semi-annually or annually as specified
above under "Interest Payment Period", on the Interest Payment Dates specified
above, commencing with the first Interest Payment Date specified above following
the Original Issue Date specified above, and at Maturity, on the principal
amount hereof, in like coin or currency, at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above following the Original Issue Date specified above and thereafter
at a rate per annum determined in accordance with the provisions hereinbelow
under the heading "Determination of Interest Rate Per Annum for Commercial Paper
Rate Notes", "Determination of Interest Rate Per Annum for Prime Rate Notes",
"Determination of Interest
3
<PAGE>
Rate Per Annum for LIBOR Notes", "Determination of Interest Rate Per Annum
for Treasury Rate Notes", "Determination of Interest Rate Per Annum for CD
Rate Notes", "Determination of Interest Rate Per Annum for CMT Rate Notes"
or "Determination of Interest Rate Per Annum for Federal Funds Rate Notes",
depending upon whether the Interest Rate Basis is Commercial Paper Rate,
Prime Rate, LIBOR, Treasury Rate, CD Rate, CMT Rate or Federal Funds Rate, as
specified above; PROVIDED, HOWEVER, that if any Interest Payment Date or
Amortizing Payment Date specified above would otherwise fall on a day that is
not a Market Day, such Interest Payment Date or Amortizing Payment Date will
be the following day that is a Market Day, except that in the event that the
Interest Rate Basis for this Note is LIBOR, if such next Market Day falls in
the next calendar month, such Interest Payment Date will be the next
preceding day that is a Market Day; PROVIDED, FURTHER, that the Company will
make such payments in respect of non-U.S. dollar denominated Notes in U.S.
dollars determined as set forth hereinbelow; PROVIDED, HOWEVER, that payments
of principal of, premium, if any, and interest on non-U.S. dollar denominated
Notes will nevertheless be made in the Specified Currency at the election of
the holder as provided herein (unless the Company is unable to make such
payments in the Specified Currency due to the imposition of exchange controls
or other circumstances beyond the control of the Company as provided herein).
Interest on this Note shall accrue (a) if the rate at which interest on this
Note is payable shall be adjusted monthly, quarterly, semi-annually or
annually, as specified above under "Interest Rate Reset Period" and as
determined in accordance with the provisions hereinbelow, from, and
including, the Interest Payment Date next preceding the date of this Note to
which interest has been paid, unless the
4
<PAGE>
date hereof is an Interest Payment Date to which interest has been paid, in
which case from the date of this Note, or unless no interest has been paid on
this Note, in which case from the Original Issue Date specified above, until
payment of said principal sum has been made or duly provided for or (b) if the
rate at which interest on this Note is payable shall be adjusted daily or
weekly, as specified above under "Interest Rate Reset Period" and as determined
in accordance with the provisions hereinbelow, from, but excluding, the Record
Date (as defined herein) next preceding the date of this Note through which
interest has been paid, unless the date hereof is a Record Date through which
interest has been paid, in which case from the day after the date of this Note,
or unless no interest has been paid on this Note, in which case from the
Original Issue Date specified above, until payment of said principal sum has
been made or duly provided for; PROVIDED, HOWEVER, that if the Original Issue
Date is after any Record Date preceding any Interest Payment Date and before
such Interest Payment Date, interest on this Note shall accrue from such
Interest Payment Date unless the rate at which interest on this Note is payable
shall be adjusted daily or weekly, as provided above under "Interest Rate Reset
Period" and as determined in accordance with the provisions hereinbelow, in
which case interest on this Note shall accrue from such Record Date, or, in
either case, if no interest has been paid on this Note, from the Original Issue
Date specified above; PROVIDED, FURTHER, that if the Company shall default in
the payment of interest due on any Interest Payment Date, then interest on this
Note shall accrue from the next preceding Interest Payment Date or Record Date,
as the case may be, to which interest has been paid, or, if no interest has been
paid on this Note, from the Original Issue Date specified above. Subject to
certain exceptions provided in the Indenture referred to
5
<PAGE>
below, the interest so payable on any Interest Payment Date will be paid to the
person in whose name this Note is registered at the close of business on the
Record Date next preceding such Interest Payment Date, and interest payable at
Maturity will be paid to the person to whom said principal sum is payable;
PROVIDED, HOWEVER, that the first payment of interest on a Note originally
issued between a Record Date and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Record Date to the
registered owner on such next succeeding Record Date. "Record Date" shall mean
the day (whether or not a Market Day) fifteen calendar days prior to any
Interest Payment Date. "Market Day" means (a) with respect to any Note, any day
that is not a Saturday or Sunday and that is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
close in the City of Minneapolis, Minnesota or The City of New York, and (b) if
the Interest Rate Basis for this Note is LIBOR, is also a London Banking Day
("London Banking Day" means any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market), and (c) only if this
Note is denominated in a Specified Currency other than U.S. dollars, any day
that is also, in the principal financial center of the country of the currency
in which this Note is denominated, not a day on which banking institutions
generally are authorized or obligated by law or executive order to close and
(d) only if this Note is denominated in European Currency Units ("ECUs"), is
also an "ECU Settlement Day" ("ECU Settlement Day" means any day that (i) is not
either (A) a Saturday or a Sunday or (B) a day that is designated as an ECU
Non-Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payments on
ECUs shall not be made, and
6
<PAGE>
(ii) is a day on which payments in the ECU can be settled by commercial banks
and in foreign exchange markets in the place in which the relevant account for
payment is located).
Except as set forth below, payment of interest on this Note due on any
Interest Payment Date and payment of principal on this Note due on any
Amortizing Payment Date to be made in U.S. dollars will be payable at the
corporate trust office of the Trustee (as hereinafter defined) or at the
corporate trust office of Norwest Bank Minnesota, N.A., as paying agent under
the Indenture (the "Paying Agent"), PROVIDED that, at the option of the Company,
payment may be made by check mailed to the person entitled thereto at the
holder's last address as it appears in the Security Register or, in the case of
a holder of $10,000,000 or more in aggregate principal amount of Notes, by wire
transfer to such account as may have been appropriately designated by such
holder as set forth herein. Payment of the principal of, premium, if any, and
interest, if any, on this Note due to the holder hereof at Maturity to be made
in U.S. dollars will be made, in immediately available funds, upon presentation
of this Note at the corporate trust office of the Trustee in The City of New
York or the corporate trust office of the Paying Agent in the City of
Minneapolis, Minnesota, provided that this Note is presented for surrender to
the Paying Agent in time for the Paying Agent to make such payment in such funds
in accordance with its normal procedures.
If this Note is a Global Note, the total amount of any principal,
premium, if any, and interest due on this Note representing one or more
Book-Entry Notes on any Interest Payment Date or Amortizing Payment Date or at
Maturity will be made available to the Trustee
7
<PAGE>
on such date. As soon as possible thereafter, the Trustee will make such
payments to the Depositary. The Depositary will allocate such payments to each
Book-Entry Note represented by the Global Note and make payments to the owners
or holders thereof in accordance with its existing operating procedures.
Payments of interest to be made in a Specified Currency other than
U.S. dollars (other than interest on this Note due to the holder hereof at
Maturity) will be paid by check mailed to the address of the holder entitled
thereto as it appears in the Security Register, such check to be drawn on a bank
office located outside of the United States. Payment in a Specified Currency
other than U.S. dollars of any Amortizing Payment Amount will be paid by check
mailed to the address of the holder entitled thereto as it appears in the
Security Register, such check to be drawn on a bank office located outside the
United States. Payment in a Specified Currency, other than U.S. dollars, of the
principal and premium and interest, if any, on this Note due to the holder
hereof at Maturity will be made by wire transfer of immediately available funds
to a designated account maintained in the country issuing the Specified Currency
as shall have been designated at least sixteen days prior to Maturity by the
registered holder of this Note at Maturity, provided that this Note is presented
for surrender to the Paying Agent in time for the Paying Agent to make such
payment in such funds in accordance with its normal procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Paying Agent at its corporate trust
office and, unless revoked by written notice to the Paying Agent received by the
Paying Agent on or prior to the Record
8
<PAGE>
Date immediately preceding the applicable Interest Payment Date, the Amortizing
Record Date immediately preceding the applicable Amortizing Payment Date or the
sixteenth day preceding Maturity shall remain in effect with respect to any
further payments with respect to this Note payable to such holder.
Unless otherwise specified above under "Other Terms", payments of
principal of and any premium and interest on any Note denominated in a Specified
Currency other than U.S. dollars will be converted by the Exchange Rate Agent to
U.S. dollars in the manner set forth below, PROVIDED, HOWEVER, that the holder
of any Note denominated in a Specified Currency other than U.S. dollars may
elect to receive payments in the Specified Currency by transmitting a written
request for such payment to the corporate trust office of the Paying Agent on or
prior to the Record Date immediately preceding any Interest Payment Date, the
Amortizing Record Date immediately preceding the applicable Amortizing Payment
Date or at least sixteen calendar days prior to Maturity. Such request may be
mailed or hand delivered or sent by cable or telex or other form of facsimile
transmission. The holder of any such Note may elect to receive payment in the
Specified Currency for all principal, premium, if any, and interest payments and
need not file a separate election for each payment. Any such election will
remain in effect until revoked by written notice to the Paying Agent, but
written notice of any such revocation must be received by the Paying Agent on or
prior to the Record Date immediately preceding the applicable Interest Payment
Date, the Amortizing Record Date immediately preceding the applicable Amortizing
Payment Date or the sixteenth calendar day preceding Maturity.
9
<PAGE>
If this Note is a Global Note as specified above, a beneficial owner
of this Note denominated in a Specified Currency electing to receive payments of
principal or any premium or interest in a Specified Currency other than U.S.
dollars must notify the participant through which its interest is held on or
prior to the applicable Regular Record Date, in the case of a payment of
interest, and on or prior to the sixteenth day prior to Maturity, in the case of
principal or premium, of such beneficial owner's election to receive all or a
portion of such payment in a Specified Currency. Such participant must notify
the Depositary of such election on or prior to the third Market Day after such
Regular Record Date. The Depositary will notify the Paying Agent of such
election on or prior to the fifth Market Day after such Regular Record Date. If
complete instructions are received by the participant and forwarded by the
participant to the Depositary, and by the Depositary to the Paying Agent, on or
prior to such dates, the beneficial owner will receive payments in the Specified
Currency.
If a payment with respect to this Note cannot be made by wire transfer
because the required designation has not been received by the Paying Agent on or
before the requisite date or for any other reason, a notice will be mailed to
the holder at its registered address requesting a designation pursuant to which
such wire transfer can be made and, upon the Paying Agent's receipt of such a
designation, such payment will be made within five Market Days of such receipt.
The Company will pay any administrative costs imposed by banks in connection
with making payments by wire transfer, but any tax, assessment or governmental
charge imposed upon payments will be borne by the holder or holders of this Note
in respect of which payments are made.
10
<PAGE>
Any payment on this Note due on any day which is not a Market Day need
not be made on such day, but may be made on the next succeeding Market Day with
the same force and effect as if made on the due date except that, if the
Interest Rate Basis for this Note is LIBOR and such Market Day is in the next
succeeding calendar month, such payment shall be made on the immediately
preceding Market Day, and, in the case of a payment at Maturity due on a day
which is not a Market Day, no interest shall accrue for the period from and
after such date.
IF THIS NOTE IS A GLOBAL NOTE AS SPECIFIED ABOVE, THE FOLLOWING LEGEND
IS APPLICABLE: "THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY
TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR NOMINEE OF SUCH SUCCESSOR."
Additional provisions of this Note are contained following the
signature lines and Certificate of Authentication hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to hereinbelow.
11
<PAGE>
IN WITNESS WHEREOF, NORWEST CORPORATION has caused this instrument to
be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF NORWEST CORPORATION
AUTHENTICATION
This Note is one of a
designated series of Debt
Securities described in
the Indenture referred to
hereinbelow By
__________________,
THE FIRST NATIONAL BANK OF
CHICAGO,
as Trustee,
By , Attest:
---------------------------
Authorized Officer
----------------------------------------
, Secretary
---------------------------
OR
NORWEST BANK MINNESOTA, N.A., [SEAL]
as Authenticating Agent
for the Trustee
By
---------------------------,
Authorized Officer
12
<PAGE>
NORWEST CORPORATION
MEDIUM-TERM FLOATING RATE NOTE, SERIES J
Due Nine Months or More From Date of Issue
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (the "Debt Securities"), all
issued or to be issued under and pursuant to an indenture dated as of
December 15, 1993 (the "Indenture"), with The First National Bank of Chicago, as
Trustee (the "Trustee"), to which Indenture reference is hereby made for a
description of the rights, duties and immunities thereunder of the Trustee and
the rights thereunder of the holders of the Debt Securities. As provided in the
Indenture, the Debt Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions, if any, may be subject to different
sinking, purchase or analogous funds, if any, may be subject to different
covenants and events of default, and may otherwise vary as in the Indenture
provided or permitted. This Note is one of a series of the Debt Securities,
which series is limited to an aggregate initial offering price of
$5,000,000,000, or the equivalent thereof in foreign currencies or foreign
currency units, designated as the Medium-Term Notes, Series J (the "Notes") of
the Company. The Notes may mature at different times, bear interest, if any, at
different rates, be redeemable at different times or not at all, be repayable at
the option of the holder at different times or not at all, be extendible and be
denominated in different currencies.
13
<PAGE>
The interest rate in effect from the date of issue to the Initial
Interest Reset Date shall be the Initial Interest Rate specified above.
Commencing with the Initial Interest Reset Date specified above following the
Original Issue Date specified above, the rate at which interest on this Note is
payable shall be adjusted daily, weekly, monthly, quarterly, semi-annually or
annually as specified above under "Interest Rate Reset Period"; PROVIDED,
HOWEVER, that unless otherwise specified above under "Other Terms" the interest
rate in effect hereon for the 10 calendar days immediately prior to Maturity
hereof will be that in effect on the tenth day next preceding Maturity. Each
such adjusted rate shall be applicable from and including the Interest Reset
Date to which it relates to but not including the next succeeding Interest Reset
Date or until Maturity, as the case may be. Subject to applicable provisions of
law and except as specified herein, on each Interest Reset Date, the rate of
interest on this Note shall be the rate determined with respect to the Interest
Determination Date next preceding such Interest Reset Date in accordance with
the provisions of the applicable heading below and adjusted by the addition or
subtraction of the Spread, if any, specified above, and/or by the multiplication
by the Spread Multiplier, if any, specified above.
DETERMINATION OF INTEREST RATE PER ANNUM FOR PRIME RATE NOTES. If the
Interest Rate Basis specified above is Prime Rate, the interest rate per annum
determined with respect to any Interest Determination Date specified above shall
equal the rate on such date as such rate is published in the Federal Reserve
Board "Statistical Release H.15(519), Selected Interest Rates" or any successor
publication of the Federal Reserve Board ("H.15(519)") under the heading "Bank
Prime Loan". If such rate is not published prior to 9 A.M., New York City time,
on the
14
<PAGE>
Interest Calculation Date, then the Prime Rate shall be the arithmetic mean of
the rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate or
base lending rate as in effect for such Interest Determination Date. If fewer
than four such rates but more than one such rate appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, the Prime Rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Interest Determination Date by four major money center banks in The City of New
York selected by the Calculation Agent. If fewer than two such rates appear on
the Reuters Screen USPRIME1 Page, the Prime Rate will be determined by the
Calculation Agent on the basis of the rates furnished in The City of New York by
the appropriate number of substitute banks or trust companies organized and
doing business under the laws of the United States, or any State thereof, having
total equity capital of at least $500,000,000 and being subject to supervision
or examination by federal or state authority, selected by the Calculation Agent
to provide such rate or rates; PROVIDED, HOWEVER, that if the banks or trust
companies selected as aforesaid are not quoting as mentioned in this sentence,
the Prime Rate for such Prime Interest Determination Date will be the Prime Rate
as determined based on the last such rate published in H.15(519) and provided,
further, that if such rate is not so published in H.15(519), the Prime Rate
hereon will remain the Prime Rate in effect hereon on such Prime Interest
Determination Date. "Reuters Screen USPRIME1 Page" means the display designated
as page "USPRIME1" on the Reuters Monitor Money
15
<PAGE>
Rates Services (or such other page as may replace the USPRIME1 that service for
the purpose of displaying prime rates or base lending rates of major United
States banks).
DETERMINATION OF INTEREST RATE PER ANNUM FOR LIBOR NOTES. If the
Interest Rate Basis specified above is LIBOR, the interest rate per annum
determined with respect to any Interest Determination Date specified above shall
be determined by the Calculation Agent in accordance with the following
provisions:
(i) With respect to any Interest Determination Date, LIBOR will be,
as specified on the face hereof, either: (a) the arithmetic mean of the
offered rates for deposits in U.S. dollars having the specified Index
Maturity, commencing on the second London Banking Day immediately following
such Interest Determination Date, that appear on the Reuters Screen LIBO
Page (as defined below) as of 11:00 A.M., London time, on such Interest
Determination Date, if at least two such offered rates appear on the
Reuters Screen LIBO Page ("LIBOR Reuters"), or (b) the rate for deposits in
U.S. dollars having the specified Index Maturity, commencing on the second
London Banking Day immediately following such Interest Determination Date,
that appears on the Telerate Page 3750 (as defined below) as of 11:00 A.M.,
London time, on such Interest Determination Date ("LIBOR Telerate").
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or such other page as may
16
<PAGE>
replace the 3750 page on that service or such other service or services as
may be nominated by the British Bankers' Association for the purpose of
displaying London interbank offered rates for U.S. dollar deposits). If
neither LIBOR Reuters nor LIBOR Telerate is specified on the face hereof,
LIBOR will be determined as if LIBOR Telerate had been specified. If fewer
than two offered rates appear on the Reuters Screen LIBO Page, or if no rate
appears on the Telerate Page 3750, as applicable, LIBOR in respect of such
Interest Determination Date will be determined in the manner described in
(ii) below.
(ii) With respect to any Interest Determination Date on which fewer
than two offered rates appear on the Reuters Screen LIBO Page, as specified
in (i)(a) above, or on which no rate appears on Telerate Page 3750, as
specified in (i)(b) above, as applicable, LIBOR will be determined on the
basis of the rates at which deposits in U.S. dollars are offered by four
major banks in the London interbank market selected by the Calculation
Agent (the "Reference Banks") at approximately 11:00 A.M., London time, on
such Interest Determination Date to prime banks in the London interbank
market having the specified Index Maturity commencing on the second London
Banking Day immediately following such Interest Determination Date and in a
principal amount, not less than U.S. $1,000,000, that, in the judgment of
the Calculation Agent, is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal
London office of each of such Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, LIBOR in respect of
such Interest Determination
17
<PAGE>
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of such Interest Determination
Date will be the arithmetic mean of the rates quoted by three major banks
in The City of New York selected by the Calculation Agent at approximately
11:00 A.M., New York City time, on such Interest Determination Date for
loans in United States dollars to leading European banks, having the
specified Index Maturity, commencing on the second London Banking Day
immediately following that LIBOR Interest Determination Date and in a
principal amount, not less than U.S. $1,000,000, that, in the judgment of
the Calculation Agent, is representative for a single transaction in such
market at such time; PROVIDED, HOWEVER, that if fewer than three banks in
The City of New York selected as aforesaid by the Calculation Agent are
quoting as specified in this sentence, LIBOR with respect to such LIBOR
Interest Determination Date will remain LIBOR in effect hereon on such
LIBOR Interest Determination Date.
DETERMINATION OF INTEREST RATE PER ANNUM FOR TREASURY RATE NOTES. If
the Interest Rate Basis specified above is Treasury Rate, the interest rate per
annum determined with respect to any Interest Determination Date specified above
shall equal the rate for the most recent auction of direct obligations of the
United States ("Treasury bills") having the Index Maturity specified above as
published in H.15(519) under the heading "U.S. Government Securities/Treasury
Bills/Auction Average (Investment)" or, if not so published by 3:00 P.M., New
York City time, on the Interest Calculation Date, as specified above, pertaining
to such Interest Determination Date, the auction average rate (expressed as a
bond equivalent on the
18
<PAGE>
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
for such auction as otherwise reported by the United States Department of the
Treasury. In the event that the results of such auction of Treasury bills are
not published or reported as provided above by 3:00 P.M., New York City time, on
such Interest Calculation Date or if no such auction is held in a particular
week, then the interest rate per annum shall be calculated by the Calculation
Agent and shall be the yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the specified Index Maturity; PROVIDED, HOWEVER, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as described in
this sentence, the Treasury Rate hereon with respect to such Interest
Determination Date will remain the Treasury Rate in effect hereon on such
Interest Determination Date.
DETERMINATION OF INTEREST RATE PER ANNUM FOR COMMERCIAL PAPER RATE
NOTES. If the Interest Rate Basis specified above is Commercial Paper Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified above shall equal (a) the Money Market Yield (as defined herein)
of the rate on such Interest Determination Date for commercial paper having the
Index Maturity specified above, (i) as such rate is published in Release
H.15(519), under the heading "Commercial Paper", or (ii) if such rate is not
published on or prior to 3:00 P.M., New York City time, on the Interest
Calculation Date, as specified
19
<PAGE>
above, pertaining to such Interest Determination Date, as published by the
Federal Reserve Bank of New York in its daily statistical release, "Composite
3:30 P.M. Quotations for U.S. Government Securities", or any successor
publication of the Federal Reserve Bank of New York ("Composite Quotations"),
under the heading "Commercial Paper", or (b) if by 3:00 P.M., New York City
time, on such Interest Calculation Date, such rate is not published in either of
such publications, the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Interest Determination Date,
of three leading dealers of commercial paper in The City of New York selected by
the Calculation Agent for commercial paper having the specified Index Maturity
placed for industrial issuers whose bond rating is "AA", or the equivalent, from
a nationally recognized securities rating agency; PROVIDED, HOWEVER, that if
fewer than three such dealers are quoting as described above, the Commercial
Paper Rate hereon with respect to such Interest Determination Date will remain
the Commercial Paper Rate in effect hereon on such Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance with
the following formula:
360 x D
Money Market Yield = 100 x
-------------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as decimal; and "M" refers to the actual number of
days in the interest period for which interest is being calculated.
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<PAGE>
DETERMINATION OF INTEREST RATE PER ANNUM FOR CD RATE NOTES. If the
Interest Rate Basis specified above is CD Rate, the interest rate per annum
determined with respect to any Interest Determination Date specified above shall
equal the rate for the relevant CD Interest Determination Date for negotiable
certificates of deposit having the specified Index Maturity as published in
Release H.15(519) under the heading "CDs (Secondary Market)". In the event that
such rate is not published prior to 3:00 P.M., New York City time, on the
relevant Interest Calculation Date, then the CD Rate shall be the rate on such
CD Rate Interest Determination Date for negotiable certificates of deposit
having the specified Index Maturity as published in Composite Quotations under
the heading "Certificates of Deposit". If by 3:00 P.M., New York City time, on
such Interest Calculation Date such rate is not published in Composite
Quotations, the CD Rate for such Interest Determination Date shall be calculated
by the Calculation Agent and shall be the arithmetic mean of the secondary
market offered rates, as of 10:00 A.M., New York City time, on such CD Rate
Interest Determination Date, of three leading nonbank dealers of negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money market banks with a remaining maturity closest to the specified Index
Maturity in a denomination of $5,000,000; PROVIDED, HOWEVER, that, if fewer than
three dealers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the CD Rate hereon with respect to such Interest
Determination Date will remain the CD Rate in effect hereon such Interest
Determination Date.
21
<PAGE>
DETERMINATION OF INTEREST RATE PER ANNUM FOR CMT RATE NOTES. If
the Interest Rate Basis specified above is CMT Rate, the interest rate per
annum determined with respect to any Interest Determination Date specified
above shall equal the rate displayed on the Designated CMT Telerate Page (as
defined below) under the caption " . . . Treasury Constant Maturities . . .
Federal Reserve Board Release H.15 . . . Mondays Approximately 3:45 p.m.,"
under the column for the Designated CMT Maturity Index (as defined below) for
(i) if the Designated CMT Telerate Page is 7055, the rate on such Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week, or the month, as applicable, ended immediately preceding the week in
which such Interest Determination Date occurs. If such rate is no longer
displayed on the relevant page, or if not displayed by 3:00 p.m., New York
City time, on the Interest Calculation Date, then the CMT Rate for such
Interest Determination Date will be such treasury constant maturity rate for
the Designated CMT Maturity Index as published in the relevant Release
H.15(519). If such rate is no longer published, or if not published by 3:00
p.m., New York City time, on the related Interest Calculation Date, then the
CMT Rate for such Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for such Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or
the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated
CMT Telerate Page and published in the relevant Release H.15(519). If such
information is not provided by 3:00 p.m., New York
22
<PAGE>
City time, on the related Calculation Date, then the CMT Rate for such
Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity, based on the arithmetic mean of the secondary
market closing offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the
Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued noncallable fixed
rate obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining
term to maturity of not less than such Designated CMT Maturity Index minus
one year. If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for the Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with an original maturity of the number of years that is the
next highest to the CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least
$100 million. If three or four
23
<PAGE>
(and not five) of such Reference Dealers are quoting as described above, then
the CMT Rate will be based on the arithmetic mean of the offer prices obtained
and neither the highest nor the lowest of such quotes will be eliminated;
provided however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as described herein, the CMT Rate will be the CMT
Rate in effect on such Interest Determination Date. If two Treasury Notes with
an original maturity as described in the third preceding sentence have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the quotes
for the Treasury Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying treasury
constant maturities as reported in Release H.15(519)), for the purpose of
displaying treasury constant maturities as reported in Release H.15(519). If no
such page is specified in the applicable Pricing Supplement, the Designated CMT
Telerate Page shall be 7052, for the most recent week. "Designated CMT Maturity
Index" means the original period to maturity of the U.S. Treasury securities
(either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified on the face hereof with
respect to which the CMT Rate will be calculated. If no such maturity is
specified on the face hereof, the Designated CMT Maturity Index shall be 2
years.
DETERMINATION OF INTEREST RATE PER ANNUM FOR FEDERAL FUNDS RATE NOTES.
If the Interest Rate Basis specified above is Federal Funds Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified above shall equal the rate on the relevant Federal Funds Interest
Determination Date for Federal Funds as published in
24
<PAGE>
Release H.15(519) under the heading "Federal Funds (Effective)". In the event
that such rate is not published prior to 3:00 P.M., New York City time, on the
relevant Interest Calculation Date, then the Federal Funds Rate will be the rate
on such Federal Funds Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate". If by 3:00 P.M.,
New York City time, on such Interest Calculation Date such rate is not published
in Composite Quotations, the Federal Funds Rate with respect to such Interest
Determination Date shall be calculated by the Calculation Agent and shall be the
arithmetic mean of the rates, as of 9:00 A.M., New York City time, on such
Federal Funds Interest Determination Date, for the last transaction in overnight
Federal Funds arranged by three leading dealers of Federal Funds transactions in
The City of New York selected by the Calculation Agent; PROVIDED, HOWEVER, that
if fewer than three dealers selected as aforesaid by the Calculation Agent are
quoting as mentioned in this sentence, the Federal Funds Rate hereon with
respect to such Interest Determination Date will remain the Federal Funds Rate
in effect hereon on such Federal Funds Interest Determination Date.
All percentages resulting from any calculation referred to herein will
be rounded, if necessary, to the nearest one hundred-thousandth of one
percentage point, with five one-millionths of one percentage point rounded
upward (e.g., 9.876545% (or. 09876545) being rounded to 9.87655% (or .0987655)
and 9.876544% (or .09876544) being rounded to 9.87654% (or .0987654)); and all
currency or currency unit amounts used in or resulting from such calculations on
this Note will be rounded to the nearest one-hundredth of a unit (with .005 of a
unit being rounded upward).
25
<PAGE>
Notwithstanding the foregoing, the interest rate per annum hereon
shall not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified above. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Interest Calculation Date.
The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date with respect
to this Note.
Interest payments hereon will include interest accrued to but
excluding the applicable Interest Payment Date; PROVIDED, HOWEVER, that if the
rate at which interest on this Note is payable shall be adjusted daily or weekly
as specified above under "Interest Rate Reset Period" and as determined in
accordance with the provisions hereof, interest payable on any Interest Payment
Date, other than interest payable on any date on which principal hereof is
payable, will include interest accrued to and including the Record Date next
preceding such Interest Payment Date. Accrued interest hereon from the Original
Issue Date or from the last date to which interest hereon has been paid or duly
provided for, as the case may be, shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factors calculated for
each
26
<PAGE>
day from the Original Issue Date or from the last date to which interest shall
have been paid or duly provided for, as the case may be, up to but not including
the date for which accrued interest is being calculated. The interest factor
for each such day shall be computed by dividing the interest rate per annum
applicable to such day by 360 if the Interest Rate Basis specified above is
Prime Rate, LIBOR, Commercial Paper Rate, CD Rate, CMT Rate or Federal Funds
Rate or by the actual number of days in the year if the Interest Rate Basis
specified above is Treasury Rate.
If this Note is denominated in a Specified Currency other than U.S.
dollars, any U.S. dollar amount to be received by a holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Market Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) selected
by the Exchange Rate Agent and approved by the Company for the purchase by the
quoting dealer of the Specified Currency for U.S. dollars for settlement on such
payment date, in the aggregate amount of the Specified Currency payable to all
holders of Notes receiving U.S. dollar payments on such payment date and at
which the applicable dealer commits to execute a contract. If three such bid
quotations are not available, payments will be made in the Specified Currency.
All currency exchange costs associated with any payments in U.S. dollars will be
borne by the holder of the Note by deductions from such payments.
If the principal of, premium, if any, or interest on this Note is
payable in a Specified Currency other than U.S. dollars and, due to the
imposition of exchange controls or
27
<PAGE>
other circumstances beyond the control of the Company, the Specified Currency is
not available at the time of any scheduled payment of principal, premium or
interest to be made in the Specified Currency, then the Company shall be
entitled to satisfy its obligations hereunder by making such payment in U.S.
dollars. Any such payment shall be made on the basis of the Market Exchange
Rate on the second Market Day prior to such payment, or if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise indicated above under "Other Terms". The Market
Exchange Rate for any Specified Currency means the noon buying rate in The City
of New York for cable transfer for such Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment under such circumstances in U.S.
dollars where required payment is in a Specified Currency will not constitute an
Event of Default under the Indenture.
In case an Event of Default, as defined in the Indenture, with respect
to the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
28
<PAGE>
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Debt Securities of each series to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the holders of two-thirds in principal amount of the Debt
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting (i) the holders of two-thirds in principal
amount of the Debt Securities of each series at the time Outstanding, on behalf
of the holders of all Debt Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and (ii) the holders of a
majority in principal amount of the Debt Securities of each series at the time
Outstanding, on behalf of the holders of all Debt Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the holder of this Note shall be conclusive and
binding upon such holder and upon all future holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
If so provided above under the heading "Redeemable on or after (at
option of Company)", this Note may be redeemed by the Company on and after the
date so indicated. On and after the date, if any, from which this Note may be
redeemed, this Note may be redeemed in whole or in part, at the option of the
Company at a redemption price equal to the product of the principal amount of
this Note to be redeemed multiplied by the Redemption Percentage. The
Redemption Percentage shall initially equal the Initial Redemption Percentage
specified
29
<PAGE>
above, and shall decline at each anniversary of the initial date that this Note
is redeemable by the amount of the Annual Redemption Percentage Reduction
specified above, until the Redemption Percentage is equal to 100%.
If so provided above, this Note will be repayable in whole or in part
in increments of $1,000 or, in the case of non-U.S. dollar denominated Notes, of
an amount equal to the integral multiples referred to under the heading
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination) provided that the remaining principal
amount of any Note surrendered for partial repayment shall be at least $1,000
or, in the case of non-U.S. dollar denominated Notes, the minimum Authorized
Denomination referred to above, on any "Optional Repayment Date" (as stated
above), at the option of the holder, at the repayment amount specified above,
plus accrued interest, if any, to the repayment date. In order for the exercise
of the option to be effective and the Notes to be repaid, the Company must
receive at the applicable address of the Paying Agent set forth below or at such
other place or places of which the Company shall from time to time notify the
holder of the within Note, on or before the thirtieth, but not earlier than the
forty-fifth day, or, if such day is not a Market Day, the next succeeding Market
Day, prior to the repayment date, either (i) this Note, with the form below
entitled "Option to Elect Repayment" duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the holder of this Note, (b) the principal
amount of this Note and the amount of this
30
<PAGE>
Note to be repaid, (c) a statement that the option to elect repayment is being
exercised thereby, and (d) a guarantee stating that the Company will receive
this Note, with the form below entitled "Option to Elect Repayment" duly
completed, not later than five Market Days after the date of such telegram,
telex, facsimile transmission or letter (and this Note and form duly completed
are received by the Company by such fifth Market Day). Any such election shall
be irrevocable. The address to which such deliveries are to be made is Sixth
and Marquette, Minneapolis, Minnesota 55479 (or, at such other place as the
Company shall notify the holders of the Notes). All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note for
repayment will be determined by the Company, whose determination will be final
and binding.
The Notes are issuable in global or definitive form without coupons in
denominations of $1,000 and integral multiples thereof or, if the Specified
Currency is other than U.S. dollars, in the denominations indicated above. Upon
due presentment for registration of transfer of this Note at the corporate trust
office of the Trustee in The City of New York or at the corporate trust office
of the Paying Agent in the City of Minneapolis, Minnesota, a new Note or Notes
in authorized denominations in the Specified Currency for an equal aggregate
principal amount and like interest rate and Stated Maturity will be issued to
the transferee in exchange therefor, subject to the limitations provided in the
Indenture and to the limitations described below with respect to Global Notes,
if applicable, without charge except for any tax or other governmental charge
imposed in connection therewith.
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<PAGE>
If this Note is a Global Note (as specified above), this Note is
exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form and so notifies the Trustee or (z) an Event of Default with
respect to the Notes represented hereby has occurred and is continuing. If this
Note is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for definitive Notes in registered form, bearing interest (if any)
at the same rate or pursuant to the same formula, having the same date of
issuance, redemption provisions, if any, Specified Currency, Stated Maturity and
other terms and of differing denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the places, at the respective times, at the rate and in the currency herein
prescribed.
The Company, the Trustee and the Paying Agent may deem and treat the
registered holder hereof as the absolute owner of this Note at such holder's
address as it appears on the Security Register of the Company as kept by the
Trustee or duly authorized agent of the Company (whether or not this Note shall
be overdue), for the purpose of receiving payment of or on account hereof and
for all other purposes, and none of the Company, the Trustee or the Paying Agent
shall be affected by any notice to the contrary. All payments made to or upon
the
32
<PAGE>
order of such registered holder shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for moneys payable on this Note.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or any Note, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, or against any past, present or
future stockholder, officer or director, as such, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such personal liability of every such incorporator, stockholder,
officer and director, as such, being expressly waived and released by the
acceptance hereof and as a condition of and as part of the consideration for the
issuance of this Note.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
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--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at ______________________________
(please print or typewrite name and address of the undersigned).
For this Note to be repaid the Company must receive at the applicable
address of the Paying Agent set forth above or at such other place or places of
which the Company shall from time to time notify the holder of the within Note,
on or before the thirtieth, but not earlier than the forty-fifth, day, or, if
such day is not a Market Day, the next succeeding Market Day, prior to the
repayment date, (i) this Note, with this "Option to Elect Repayment" form duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the holder of the Note, (b) the principal amount of the Note and the amount of
the Note to be repaid, (c) a statement that the option to elect repayment is
34
<PAGE>
being irrevocably exercised thereby, and (d) a guarantee stating that the Note
to be repaid with the form entitled "Option to Elect Repayment" on the addendum
to the Note duly completed will be received by the Company not later than five
Market Days after the date of such telegram, telex, facsimile transmission or
letter (and such Note and form duly completed are received by the Company by
such fifth Market Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples referred to above under the heading
"Authorized Denominations" (or, if no such reference is made, an amount equal to
the minimum Authorized Denomination)) which the holder elects to have repaid:
______________________________; and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof or, if the Note is
denominated in a currency other than U.S. dollars, an Authorized Denomination)
of the Note or Notes to be issued to the holder for the portion of the within
Note not being repaid (in the absence of any specification, one such Note will
be issued for the portion not being repaid): _______________________.
Date
------------------------- ---------------------------------------------
Notice: The signature to this Option to
Elect Repayment must correspond with the name
as written upon page 3 of the Note in every
particular without alteration or enlargement
or any other change whatsoever.
35
<PAGE>
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<CAPTION>
<S> <C> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT--____CUSTODIAN ____
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
(State)
</TABLE>
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- ------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of NORWEST CORPORATION and does hereby irrevocably constitute
and appoint ________________________________________ attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
----------------------- --------------------------------------
--------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
$5,000,000,000
NORWEST CORPORATION
MEDIUM-TERM NOTES, SERIES J
CALCULATION AGENT AGREEMENT
THIS AGREEMENT is made as of July 2, 1996 between Norwest Corporation
(hereinafter called the "Issuer"), whose principal office is at Sixth and
Marquette, Minneapolis, Minnesota 55479, and Norwest Bank Minnesota, N.A.,
(hereinafter sometimes called the "Calculation Agent" which term shall, unless
the context shall otherwise require, include its successors and assignees),
whose principal office is at Sixth and Marquette, Minneapolis, Minnesota 55479.
WHEREAS:
(A) The Issuer proposes to issue from time to time up to $5,000,000,000
aggregate initial offering price of Medium-Term Notes, Series J (the
"Notes") entitled to the benefits of the Indenture dated as of December 15,
1993 (the "Indenture") between the Issuer and The First National Bank of
Chicago, as Trustee (the "Trustee").
(B) The Notes will be offered in registered form only in an aggregate initial
offering price of up to $5,000,000,000, subject to reduction by the sale of
other Securities (as defined in the Indenture) but subject to increase by
appropriate corporate action of the Issuer.
(C) The terms of the Notes will be as set forth in Annex A to this Agreement
("Annex A").
NOW IT IS HEREBY AGREED THAT:
1. Terms defined in the Indenture and the Description of Notes shall bear the
same meanings herein unless the context otherwise requires. The
"Description of Notes" means the terms and conditions of the Notes as set
forth in Annex A, and as supplemented or amended in one or more Pricing
Supplements (each a "Supplement").
2. The Issuer hereby appoints Norwest Bank Minnesota, N.A., as Calculation
Agent for the Notes, upon the terms and subject to the conditions herein
mentioned, and Norwest Bank Minnesota, N.A., hereby accepts such
appointment. The Calculation Agent shall act as an independent expert for
the purpose of determining the interest rate of, and the amount of interest
on, the Floating Rate Notes.
3. In no event shall the interest rate be less than the Minimum Rate, if any,
or more than the Maximum Rate, if any, designated in the applicable
Supplement or more than the maximum rate permitted by New York law, as the
same may be modified by United States law of general application.
<PAGE>
4. The Calculation Agent shall calculate the amount of interest payable on
each Floating Rate Note in the manner and at the times set forth in Annex
A, as applicable to such Note.
5. As soon as practicable after each Interest Determination Date, the
Calculation Agent will cause to be forwarded to the Issuer, the Trustee and
the Paying Agent information regarding the interest rates, the interest
periods, the amount of interest for each interest period and the relevant
Interest Payment Date. The Calculation Agent will, upon the request of any
holder of any Floating Rate Note, provide the interest rate then in effect
and, if determined, the interest rate which will become effective on the
next Interest Reset Date with respect to such Note.
6. The Issuer will pay the expenses properly incurred by the Calculation Agent
in connection with its duties hereunder upon receipt of such invoices as
the Issuer shall reasonably require.
7. The Issuer will indemnify the Calculation Agent against any losses,
liabilities, costs, claims, actions or demands which it may incur or
sustain or which may be made against it in connection with its appointment
or the exercise of its powers and duties hereunder as well as the
reasonable costs, including the expenses and fees of counsel in defending
any claim, action or demand except such as may result from the negligence,
willful default or bad faith of the Calculation Agent or any of its
employees. The Calculation Agent shall incur no liability and shall be
indemnified and held harmless by the Issuer for, or in respect of, any
actions taken or suffered to be taken in good faith by the Calculation
Agent in reliance upon (i) the written opinion or advice of counsel or (ii)
written instructions from the Issuer.
8. The Calculation Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of which the
Issuer agrees:
(i) in acting under this Agreement and in connection with the Floating
Rate Notes, the Calculation Agent does not assume any obligation
towards, or any relationship of agency or trust for or with, any of
the holders of the Floating Rate Notes;
(ii) unless herein otherwise specifically provided, any order,
certificate, notice, request or communication from the Issuer made
or given under any provision of this Agreement shall be sufficient
if signed by any person whom the Calculation Agent reasonably
believes to be a duly authorized officer of the Issuer; and
(iii) the Calculation Agent shall be obligated to perform only such duties
as are set forth specifically herein and any duties necessarily
incidental thereto.
9. (a) Subject as provided below, the Calculation Agent may at any
time resign as the Calculation Agent by giving written notice to the
Issuer and the Trustee of such intention on its part, specifying the
date on which its desired resignation shall become effective,
provided that such notice shall be given not less than three months
prior to the said effective date unless the Issuer and the Trustee
otherwise agree in
-2-
<PAGE>
writing. Except as provided below, the Calculation Agent may be
removed by the filing with it of an instrument in writing signed by
the Issuer specifying such removal and the date when it shall become
effective (such effective date being at least twenty days after the
said filing and not less than forty-five days before the next
Interest Payment Date).
Such resignation or removal shall take effect upon
(i) the appointment by the Issuer as hereinafter provided of a
successor Calculation Agent approved by the Trustee,
(ii) the acceptance of such appointment by such successor
Calculation Agent, and
(iii) the giving of notice of such appointment to the holders of
the Floating Rate Notes, provided that if the Calculation
Agent fails duly to establish the amount of interest for any
interest period, such removal will take effect immediately
upon such appointment of, and acceptance thereof by, a
successor Calculation Agent approved by the Trustee, in
which event notice of such appointment shall be given to the
holders of the Floating Rate Notes as soon as practicable
thereafter. Upon its resignation or removal becoming
effective, the retiring Calculation Agent shall be entitled
to the reimbursement of all expenses incurred by such
retiring Calculation Agent pursuant to the last sentence of
paragraph 6 hereof.
(b) If at any time the Calculation Agent shall resign or be removed, or
shall become incapable of acting or shall be adjudged bankrupt or
insolvent, or liquidated or dissolved, or an order is made or an
effective resolution is passed to wind up the Calculation Agent, or
if the Calculation Agent shall file a voluntary petition in
bankruptcy or make an assignment for the benefit of its creditors,
or shall consent to the appointment of a receiver, administrator or
other similar official of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver, administrator or other
similar official of the Calculation Agent or of all or any
substantial part of its property shall be appointed, or if any order
of any court shall be entered approving any petition filed by or
against the Calculation Agent under the provisions of any applicable
bankruptcy or insolvency law, or if any public officer shall take
charge or control of the Calculation Agent or its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then a successor Calculation Agent, approved by the
Trustee, shall be appointed by the Issuer by an instrument in
writing filed with the successor Calculation Agent. Upon the
appointment as aforesaid of a successor Calculation Agent and
acceptance by the latter such appointment and (except in cases of
removal for failure to establish the amount of interest) the giving
of notice to holders of the Floating Rate Notes, the former
Calculation Agent shall cease to be Calculation Agent hereunder.
-3-
<PAGE>
(c) Any successor Calculation Agent appointed hereunder shall execute
and deliver to its predecessor and the Issuer an instrument, in the
form approved by the Trustee, accepting such appointment hereunder,
and thereupon such successor Calculation Agent, without any further
act, deed or conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations of such
predecessor with like effect as if originally named as the
Calculation Agent hereunder, and such predecessor, upon payment of
its charges and disbursements then unpaid, shall thereupon become
obliged to transfer and deliver, and such successor Calculation
Agent shall be entitled to receive, copies of any relevant records
maintained by such predecessor Calculation Agent.
(d) Any corporation into which the Calculation Agent may be merged or
converted or any corporation with which the Calculation Agent may be
consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Calculation Agent shall be
a party shall, to the extent permitted by applicable law and
provided that it shall be acceptable to the Trustee, be the
successor Calculation Agent under this Agreement without the
execution or filing of any paper or any further act on the part of
any of the parties hereto. Notice of any such merger, conversion or
consolidation shall forthwith be given to the Issuer and the
Trustee.
10. Any notice required to be given hereunder shall be delivered in person,
sent by letter or telex or communicated by telephone (subject, in the case
of communication by telephone, to confirmation dispatched within two
business days by letter or telex), in the case of the Issuer, to it at
Sixth and Marquette, Minneapolis, Minnesota 55479, Attention: Corporate
Secretary; in the case of the Calculation Agent to it at Sixth and
Marquette, Minneapolis, Minnesota 55479, Attention: Barbara S. Brett; and
in the case of the Trustee to it at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126, Attention: Corporate Trust Department or,
in any case, to any other address of which the party receiving notice shall
have notified the party giving such notice in writing.
11. This Agreement may be amended only by a writing duly executed and delivered
by each of the parties signing below.
12. The provisions of this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
-4-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered
as of the day and year first above written.
NORWEST CORPORATION
By:
------------------------------------------
Its: Senior Vice President and Treasurer
NORWEST BANK MINNESOTA, N.A.
By:
------------------------------------------
Its:
--------------------------------------
-5-
<PAGE>
Exhibit A Intentionally Omitted
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NORWEST CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
________________
INDENTURE
DATED AS OF DECEMBER 15, 1993
________________
Senior Debt Securities
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
NORWEST CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of December 15, 1993
Trust Indenture Act Section Indenture
Section
Section 310(a)(1)........................................... 609
(a)(2)................................................ 609
(a)(3)................................................ Not Applicable
(a)(4)................................................ Not Applicable
(a)(5)................................................ 609
(b)................................................... 608, 610
(c)................................................... Not Applicable
Section 311(a).............................................. 613
(b)................................................... 613
Section 312(a).............................................. 701, 702(a)
(b)................................................... 702(b)
(c)................................................... 702(c)
Section 313(a).............................................. 703(a)
(b)................................................... 703(a)
(c)................................................... 703(a)
(d)................................................... 703(b)
Section 314(a).............................................. 704, 1007
(b)................................................... Not Applicable
(c)(1)................................................ 102
(c)(2)................................................ 102
(c)(3)................................................ Not Applicable
(d)................................................... Not Applicable
(e)................................................... 102
Section 315(a).............................................. 601
(b)................................................... 602
(c)................................................... 601
(d)................................................... 601
(e)................................................... 514
Section 316(a).............................................. 101
(a)(1)(a)............................................. 104(h), 502
512
(a)(1)(b)............................................. 104(h), 513
(a)(2)................................................ Not Applicable
(b)................................................... 508
(c)................................................... 104(h)
Section 317(a)(1)........................................... 503
(a)(2)................................................ 504
(b)................................................... 1003
Section 318(a).............................................. 107
(c)................................................... 107
_____________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
Parties................................................................... 1
Recitals.................................................................. 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.................................................... 1
Act............................................................ 2
Affiliate...................................................... 2
Authorized Newspaper........................................... 2
Bearer Security................................................ 2
Board of Directors............................................. 2
Board Resolution............................................... 2
Business Day................................................... 2
Capital Stock.................................................. 2
CEDEL or CEDEL S.A............................................. 3
Commission..................................................... 3
Company........................................................ 3
Company Request and Company Order.............................. 3
corporation.................................................... 3
coupon......................................................... 3
Debt Securities................................................ 3
Defaulted Interest............................................. 3
Depositary..................................................... 3
Designated Currency............................................ 4
Dollar or $.................................................... 4
ECU............................................................ 4
Eligible Instruments........................................... 4
Euroclear...................................................... 4
European Communities........................................... 4
Event of Default............................................... 4
Exchange Rate.................................................. 4
Exchange Rate Agent............................................ 4
Exchange Rate Officer's Certificate............................ 4
Foreign Currency............................................... 4
Global Exchange Agent.......................................... 4
Global Exchange Date........................................... 4
Global Security................................................ 4
Holder......................................................... 5
Indenture...................................................... 5
i
<PAGE>
interest....................................................... 5
Interest Payment Date.......................................... 5
Maturity....................................................... 5
Officers' Certificate.......................................... 5
Opinion of Counsel............................................. 5
Original Issue Discount Security............................... 5
Outstanding.................................................... 5
Paying Agent................................................... 6
Person......................................................... 6
Place of Payment............................................... 6
Predecessor Security........................................... 6
Principal Subsidiary Bank...................................... 6
Redemption Date................................................ 6
Redemption Price............................................... 7
Registered Security............................................ 7
Regular Record Date............................................ 7
Remarketing Entity............................................. 7
Repayment Date................................................. 7
Repayment Price................................................ 7
Responsible Officer............................................ 7
Security Register.............................................. 7
Special Record Date............................................ 7
Stated Maturity................................................ 7
Subsidiary..................................................... 7
Subsidiary Bank................................................ 7
Trust Indenture Act............................................ 8
Trustee........................................................ 8
United States.................................................. 8
United States Alien............................................ 8
U.S. Government Obligations.................................... 8
Voting Stock................................................... 8
Section 102. Compliance Certificates and Opinions........................... 8
Section 103. Form of Documents Delivered to Trustee......................... 9
Section 104. Acts of Holders................................................ 10
Section 105. Notices, etc., to Trustee and Company.......................... 11
Section 106. Notice to Holders; Waiver...................................... 12
Section 107. Conflict with Trust Indenture Act.............................. 13
Section 108. Effect of Headings and Table of Contents....................... 13
Section 109. Successors and Assigns......................................... 13
Section 110. Separability Clause............................................ 13
Section 111. Benefits of Indenture.......................................... 13
Section 112. Governing Law.................................................. 13
Section 113. Legal Holidays................................................. 13
Section 114. Counterparts................................................... 14
ii
<PAGE>
ARTICLE TWO
Debt Security Forms
Section 201. Forms Generally................................................ 14
Section 202. Form of Trustee's Certificate of Authentication................ 15
Section 203. Debt Securities in Global Form................................. 15
ARTICLE THREE
The Debt Securities
Section 301. Amount Unlimited; Issuance in Series........................... 16
Section 302. Denominations.................................................. 19
Section 303. Execution, Authentication, Delivery and Dating................. 19
Section 304. Temporary Debt Securities...................................... 22
Section 305. Registration; Registration of Transfer and Exchange............ 24
Section 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.......... 28
Section 307. Payment of Interest; Interest Rights Preserved................. 29
Section 308. Persons Deemed Owners.......................................... 31
Section 309. Cancellation................................................... 31
Section 310. Computation of Interest........................................ 31
Section 311. Certification by a Person Entitled to Delivery of a Bearer
Security....................................................... 32
Section 312. Judgments...................................................... 32
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture........................ 33
Section 402. Application of Trust Money and Eligible Instruments............ 34
Section 403. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series.................................................. 34
ARTICLE FIVE
Remedies
Section 501. Events of Default.............................................. 37
Section 502. Acceleration of Maturity; Rescission and Annulment............. 38
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee 39
Section 504. Trustee May File Proofs of Claim............................... 40
Section 505. Trustee May Enforce Claims without Possession of Debt Securities
or Coupons..................................................... 41
Section 506. Application of Money Collected................................. 41
Section 507. Limitation on Suits............................................ 41
iii
<PAGE>
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest................................................... 42
Section 509. Restoration of Rights and Remedies............................. 42
Section 510. Rights and Remedies Cumulative................................. 42
Section 511. Delay or Omission Not Waiver................................... 43
Section 512. Control by Holders of Debt Securities.......................... 43
Section 513. Waiver of Past Defaults........................................ 43
Section 514. Undertaking for Costs.......................................... 44
Section 515. Waiver of Stay or Extension Laws............................... 44
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities............................ 44
Section 602. Notice of Default.............................................. 45
Section 603. Certain Rights of Trustee...................................... 45
Section 604. Not Responsible for Recitals or Issuance of Debt Securities.... 46
Section 605. May Hold Debt Securities or Coupons............................ 46
Section 606. Money Held in Trust............................................ 46
Section 607. Compensation and Reimbursement................................. 47
Section 608. Disqualification; Conflicting Interests........................ 47
Section 609. Corporate Trustee Required; Eligibility........................ 47
Section 610. Resignation and Removal; Appointment of Successor.............. 48
Section 611. Acceptance of Appointment by Successor......................... 50
Section 612. Merger, Conversion, Consolidation or Succession to Business.... 51
Section 613. Preferential Collection of Claims Against Company.............. 51
Section 614. Authenticating Agent........................................... 51
ARTICLE SEVEN
Holders' Lists and Reports By Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders...... 53
Section 702. Preservation of Information; Communications to Holders......... 53
Section 703. Reports by Trustee............................................. 54
Section 704. Reports by Company............................................. 54
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, etc. Only on Certain Terms............ 54
Section 802. Successor Corporation Substituted.............................. 55
iv
<PAGE>
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders............. 55
Section 902. Supplemental Indentures with Consent of Holders................ 56
Section 903. Execution of Supplemental Indentures........................... 57
Section 904. Effect of Supplemental Indentures.............................. 58
Section 905. Conformity with Trust Indenture Act............................ 58
Section 906. Reference in Debt Securities to Supplemental Indentures........ 58
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.................... 58
Section 1002. Maintenance of Office or Agency............................... 59
Section 1003. Money for Debt Securities Payments to Be Held in Trust........ 60
Section 1004. Purchase of Debt Securities by Company or Subsidiary.......... 61
Section 1005. Restrictions Upon Sale or Issuance of Capital Stock of Certain
Subsidiary Banks............................................... 61
Section 1006. Payment of Additional Amounts................................. 62
Section 1007. Officer's Certificate as to Default........................... 63
Section 1008. Waiver of Certain Covenants................................... 63
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101. Applicability of Article...................................... 63
Section 1102. Election to Redeem; Notice to Trustee......................... 64
Section 1103. Selection by Trustee of Debt Securities to be Redeemed........ 64
Section 1104. Notice of Redemption.......................................... 64
Section 1105. Deposit of Redemption Price................................... 65
Section 1106. Debt Securities Payable on Redemption Date.................... 66
Section 1107. Debt Securities Redeemed in Part.............................. 66
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article...................................... 67
Section 1202. Satisfaction of Sinking Fund Payments with Debt Securities.... 67
Section 1203. Redemption of Debt Securities for Sinking Fund................ 68
v
<PAGE>
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article...................................... 68
Section 1302. Repayment of Debt Securities.................................. 68
Section 1303. Exercise of Option; Notice.................................... 68
Section 1304. Election of Repayment by Remarketing Entities................. 70
Section 1305. Securities Payable on the Repayment Date...................... 70
ARTICLE FOURTEEN
Meetings of Holders of Debt Securities
Section 1401. Purposes for Which Meetings May Be Called..................... 70
Section 1402. Call, Notice and Place of Meetings............................ 70
Section 1403. Persons Entitled to Vote at Meetings.......................... 71
Section 1404. Quorum; Action................................................ 71
Section 1405. Determination of Voting Rights; Conduct and Adjournment
of Meetings.................................................... 72
Section 1406. Counting Votes and Recording Action of Meetings............... 73
ARTICLE FIFTEEN
Defeasance
Section 1501. Termination of Company's Obligations.......................... 73
Section 1502. Repayment to Company.......................................... 75
Section 1503. Indemnity for Eligible Instruments............................ 75
Testimonium ............................................................... 76
Signature and Seals ....................................................... 76
Acknowledgements .......................................................... 77
Exhibit A .................................................................A-1
Exhibit B .................................................................B-1
vi
<PAGE>
INDENTURE (the "Indenture") dated as of December 15, 1993, between
NORWEST CORPORATION, a Delaware corporation (hereinafter called the "Company"),
having its principal place of business at Norwest Center, Sixth and Marquette,
Minneapolis, Minnesota 55479 and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association (hereinafter called the "Trustee"), having its Corporate
Trust Office at One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds and other evidences of indebtedness (herein called the "Debt
Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debt Securities of any series created and issued on or after the date hereof by
the Holders thereof, it is mutually covenanted and agreed for the benefit of all
Holders of such Debt Securities or of any such series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust
Indenture Act, either directly or by reference therein, as in force at the
date as of which this instrument was executed, except as provided in
Section 905, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean
<PAGE>
such accounting principles as are generally accepted in the United States
at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar impact refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authorized Newspaper" means a newspaper in an official language of
the country of publication or in the English language customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment,
means any day which is not a Saturday or Sunday and which is not a legal holiday
or a day on which banking institutions or trust companies in that Place of
Payment are authorized or obligated by law or executive order to close.
2
<PAGE>
"Capital Stock" means, as to shares of a corporation, outstanding
shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect
of the rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding up
of such corporation.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include any Vice President of the Company
whether or not designated by a number or word or words added before or after the
title "Vice President"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126, Attention: Corporate Trust Services Division, except that, with
respect to presentation of the Debt Securities for payment or registration of
transfers or exchanges and the location of the Security Registrar, such term
means the office or agency of the Trustee at which at any particular time its
corporate agency business shall be conducted, which at the date of original
execution of this Indenture is located at 14 Wall Street, 8th Floor, New York,
New York 10005.
The term "corporation" includes corporations, associations,
companies and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
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"Depositary" means, with respect to the Debt Securities of any
series issuable or issued in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Debt Securities
of any such series shall mean the Depositary with respect to the Debt Securities
of that series.
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Eligible Instruments" means U.S. Government Obligations.
"Euroclear" means Morgan Guarantee Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as
contemplated in Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for
the payment of principal of (and premium, if any) and interest on any series of
Debt Securities, means a certificate setting forth the applicable Exchange Rate
and the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, and other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
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"Global Security" means a Debt Security issued to evidence all or
part of a series of Debt Securities in accordance with Section 303.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented, amended or restated by or pursuant to one
or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
The term "interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", with respect to any Debt Security, means
the Stated Maturity of an installment of interest on such Debt Security.
"Maturity", when used with respect to any Debt Security, means the
date on which the principal of such Debt Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be counsel for the
Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Original Issue Discount Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Debt Securities means, as
of the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any
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Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities and any coupons appertaining
thereto; PROVIDED, HOWEVER, that if such Debt Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Debt Securities in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered, or which have been paid,
pursuant to this Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Subsidiary Bank" means any Subsidiary Bank at the time
having total assets as set forth in its most recent statement of condition equal
to more than 10% of the total consolidated assets of the Company and its
Subsidiaries determined on a consolidated basis from the Company's most recent
financial statements filed with the Commission pursuant to the Securities
Exchange Act of 1934.
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"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of
Registered Securities established pursuant to Section 201 which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of
any series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be
repaid upon exercise of option for repayment by the Holder, means the date fixed
for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Debt Security to be
repaid upon exercise of option for repayment by the Holder, means the price at
which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means
any officer of the Trustee assigned by it to administer its corporate trust
matters.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Debt Security or
any installment of interest thereon, means the date specified in such Debt
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Debt Security or such installment is due and
payable.
"Subsidiary" means any corporation more than 50% of the outstanding
shares of Voting Stock, except for directors' qualifying shares, of which shall
at the time be owned, directly or indirectly, by the Company or by one or more
of the Subsidiaries, or by the Company and one or more other Subsidiaries.
"Subsidiary Bank" means any commercial bank or trust company
organized in the United States under Federal or state law, at least a majority
of the shares of the Voting Stock
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of which shall at the time be owned, directly or indirectly, by the Company or
by one or more Subsidiaries or by the Company and one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, and shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, PROVIDED
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock", as applied to the stock (or the equivalent thereof)
of any corporation, means stock (or the equivalent thereof) of any class or
classes, however designated, having ordinary voting power for the election of a
majority of the directors of such corporation, other than stock (or such
equivalent) having such power only by reason of the happening of a contingency.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee, if so requested by the Trustee, an Officers' Certificate stating
that all conditions precedent, if any, provided for
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in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definition herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or
in part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Fourteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or
writing, the authority of the Person executing the same and the principal amount
and serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient;
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and the Trustee may in any instance require further proof with respect to any of
the matters referred to in this Section.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Debt Security shall bind every
future holder of the same Debt Security and the Holder of every Debt Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, suffered or omitted by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
(g) For purposes of determining the principal amount of
Outstanding Debt Securities of any series of Holders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other Act under this Indenture, (i) each
Original Issue Discount Security shall be deemed to have the principal amount
determined by the Trustee that could be declared to be due and payable pursuant
to the terms of such Original Issue Discount Security as of the date there is
delivered to the Trustee and, where it is hereby expressly required, to the
Company, such Act by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series and (ii) each Debt Security
denominated in a Foreign Currency or composite currency shall be deemed to have
the principal amount determined by the Exchange Rate Agent by converting the
principal amount of such Debt Security in the currency in which such Debt
Security is denominated into Dollars at the Exchange Rate as of the date such
Act is delivered to the Trustee and, where it is hereby expressly required, to
the Company, by Holders of the required aggregate principal amount of the
Outstanding Debt Securities of such series (or, if there is no such rate on such
date, such rate on the date determined as specified as contemplated in Section
301).
(h) The Company may set a record date for purposes of determining
the identity of Holders of Debt Securities of any series entitled to vote or
consent to any action by vote or consent authorized or permitted by Section 512
or Section 513. Such record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of such Debt Securities furnished to the Trustee pursuant to Section 701
prior to such solicitation.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided), if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to the attention of its Secretary at
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the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice by publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act required or permitted under this Indenture shall
be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities or
coupons shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, any Paying Agent and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Debt Securities and coupons shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity of any Debt Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Debt Securities or coupons) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or Stated Maturity, and no interest shall accrue
on the amount so payable
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for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity, as the case may be.
SECTION 114. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or coupons (including any such Global Security) is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 or the authentication and delivery of such
Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Debt
Securities, as evidenced by the execution of such Debt Securities and coupons.
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SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By__________________________________________
AUTHORIZED OFFICER
SECTION 203. DEBT SECURITIES IN GLOBAL FORM.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (10) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amounts, of Outstanding Debt Securities represented thereby shall be made in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form
and in either temporary or permanent form.
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUANCE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Debt Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Debt Securities of the series pursuant to Section 304, 305, 306,
906, 1107 or 1303 and except for any Debt Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal and premium, if any,
of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of the
series shall bear interest, or the method or methods by which such rate or
rates may be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any
Registered Security on any Interest Payment Date and the circumstances, if
any, in which the Company may defer interest payments;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on Debt
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, Debt
Securities of the series may be surrendered for exchange and notices and
demands to or upon the Company in respect of the Debt Securities of the
series and this Indenture may be served and where notices to Holders
pursuant to Section 106 will be published;
(6) if applicable, the period or periods within which or the date
or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
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(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) whether Debt Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Debt Securities
of the series are to be issuable with or without coupons or both and, in
the case of Bearer Securities, the date as of which such Bearer Securities
shall be dated if other than the date of original issuance of the first
Debt Security of such series of like tenor and term to be issued;
(9) whether the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities and, in
such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(10) if Debt Securities of the series are to be issuable initially
in the form of a temporary Global Security, the circumstances under which
the temporary Global Security can be exchanged for definitive Debt
Securities and whether the definitive Debt Securities will be Registered
and/or Bearer Securities and will be in global form and whether interest
in respect of any portion of such Global Security payable in respect of an
Interest Payment Date prior to the Global Exchange Date shall be paid to
any clearing organization with respect to a portion of such Global
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the
Persons entitled to interest payable on such Interest Payment Date if
other than as provided in this Article Three;
(11) whether, and under what conditions, additional amounts will be
payable to Holders of Debt Securities of the series pursuant to Section
1006;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which any Bearer
Securities of such series shall be issuable, if other than the
denomination of $5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) the currency or currencies of denomination of the Debt
Securities of any series, which may be in Dollars, any Foreign Currency or
any composite currency, including but not limited to the ECU, and, if any
such currency of denomination is a composite currency other than the ECU,
the agency or organization, if any, responsible for overseeing such
composite currency;
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(15) the currency or currencies in which payment of the principal
of (and premium, if any) and interest on the Debt Securities will be made,
the currency or currencies, if any, in which payment of the principal of
(and premium, if any) or the interest on Registered Securities, at the
election of each of the Holders thereof, may also be payable and the
periods within which and the terms and conditions upon which such election
is to be made and the Exchange Rate and Exchange Rate Agent;
(16) if the amount of payments of principal of (and premium, if
any) or interest on the Debt Securities of the series may be determined
with reference to an index based on a currency or currencies other than
that in which the Debt Securities are denominated or designated to be
payable, the manner in which such amounts shall be determined;
(17) if payments of principal of (and premium, if any) or interest
on the Debt Securities of the series are to be made in a Foreign Currency
other than the currency in which such Debt Securities are denominated, the
manner in which the Exchange Rate with respect to such payments shall be
determined or if the Exchange Rate is to be determined otherwise than as
provided in Section 101;
(18) any Events of Default with respect to Debt Securities of such
series, if not set forth herein;
(19) any other covenant or warranty included for the benefit of the
Debt Securities of the series in addition to (and not inconsistent with)
those set forth herein for the benefit of Debt Securities of all series,
or any other covenant or warranty included for the benefit of Debt
Securities of the series in lieu of any covenant or warranty set forth
herein for the benefit of Debt Securities of all series, or any provision
that any covenant or warranty set forth herein for the benefit of Debt
Securities of all series shall not be for the benefit of Debt Securities
of such series, or any combination of such covenants, warranties or
provisions and the applicability, if any, of the provisions of Section
1008 to such covenants and warranties;
(20) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through the
deposit of money or Eligible Instruments as provided in Articles Four and
Fifteen;
(21) the Person or Persons who shall be Security Registrar for the
Debt Securities of such series if other than the Trustee, and the place or
places where the Security Register for such series shall be maintained and
the Person or Persons who will be the initial Paying Agent or Agents, if
other than the Trustee; and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining
to Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such
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Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
Debt Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or different
methods by which rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Debt Securities shall be executed on behalf of the Company
by its Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
Debt Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Debt Securities or coupons of any series or did not hold such offices at
the date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and
delivery of this Indenture, Debt Securities of any series may be executed by the
Company and delivered to the Trustee for authentication, and, except as
otherwise provided in this Article Three, shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the
Company; PROVIDED, HOWEVER, that, in connection with its original issuance, a
Bearer Security may be delivered only outside the United States and, except in
the case of a temporary Global Security, only if the Company or its agent shall
have received the certification
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required pursuant to Sections 304(b)(iii) and (iv), unless such certification
shall have been provided earlier pursuant to section 304(b)(v) hereof, and only
if the Company has no reason to know that such certification is false.
To the extent authorized in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating thereto;
(iii) an Officers' Certificate setting forth the form and terms of
the Debt Securities of such series and coupons, if any, pursuant to
Sections 201 and 301 and stating that all conditions precedent provided
for in this Indenture relating to the issuance of such Debt Securities
have been complied with; and
(iv) an Opinion of Counsel stating
(a) that the form of such Debt Securities and coupons, if
any, has been established in or pursuant to a Board Resolution or by
a supplemental indenture as permitted by Section 201 in conformity
with the provisions of this Indenture;
(b) that the terms of such Debt Securities and coupons, if
any, have been established in or pursuant to a Board Resolution or
by a supplemental indenture as permitted by Section 301 in
conformity with the provisions of this Indenture; and
(c) that such Debt Securities and coupons, if any, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, subject, as
to enforcement of remedies, to applicable bankruptcy,
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reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and the application of general
principles of equity and except further as enforcement thereof may
be limited by (i) requirements that a claim with respect to any Debt
Securities denominated other than in Dollars (or a Foreign Currency
or currency unit judgment in respect of such claim) be converted
into Dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that
the Debt Securities of a series are to be issued in whole or in part in the form
of one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver one or more Global Securities in permanent
or temporary form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate
and deliver any Debt Securities under this Section 303 if the issuance of such
Debt Securities will adversely affect the Trustee's own rights, duties or
immunities under the Debt Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Opinion of Counsel at the
time of issuance of each Debt Security, but such Opinion of Counsel, with
appropriate modifications, may instead be delivered at or prior to the time of
the first issuance of Debt Securities of such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt
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Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 304. TEMPORARY DEBT SECURITIES.
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any
series issuable as Bearer Securities, such temporary Debt Securities may be in
global form, representing all or any part of the Outstanding Debt Securities of
such series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global
form, if temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt
Securities of such series, the related temporary Debt Securities shall be
exchangeable for such definitive Debt Securities upon surrender of the
temporary Debt Securities of such series at the office or agency of the
Company in the Place of Payment for such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Debt
Securities of any series (accompanied, if applicable, by all unmatured
coupons and all matured coupons in default appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of
the same series of like tenor and terms and of authorized denominations;
PROVIDED, HOWEVER, that no Bearer Security shall be delivered in
exchange for a Registered Security; and PROVIDED, FURTHER, that a Bearer
Security shall be delivered in exchange for a Bearer Security only in
compliance with the conditions set forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary
global form, any such temporary Global Security shall, unless otherwise
provided pursuant to section 301, to be delivered to the Depositary for
the benefit of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such
other accounts as they may direct).
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(iii) Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company shall
deliver definitive Debt Securities to the Trustee or the agent appointed
by the Company pursuant to Section 301 to effect the exchange of the
temporary Global Security for definitive Debt Securities (the "Global
Exchange Agent"), in an aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or
after the Global Exchange Date, such temporary Global Security shall be
surrendered by the Depositary to the Global Exchange Agent, to be
exchanged, in whole or from time to time in part, for definitive Debt
Securities without charge and the Trustee or the Global Exchange Agent, if
authorized by the Trustee pursuant to Section 614, shall authenticate and
deliver, in exchange for each portion of such temporary Global Security,
an equal aggregate principal amount of definitive Debt Securities of the
same series of authorized denominations and of like tenor and terms as the
portion of such temporary Global Security to be exchanged. Upon any
exchange of a part of such temporary Global Security for definitive Debt
Securities, the portion of the principal amount and any interest thereon
so exchanged shall be endorsed by the Global Exchange Agent on a schedule
to such temporary Global Security, whereupon the principal amount and
interest payable with respect to such temporary Global Security shall be
reduced for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, global
registered form or global bearer form, or any combination thereof, as
specified as contemplated by Section 301, and, if any combination thereof
is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global
Bearer Security), upon such presentation by the Depositary, such temporary
Global Security shall be accompanied by a certificate signed by Euroclear
as to the portion of such temporary Global Security held for its account
then to be exchanged and a certificate signed by CEDEL S.A. as to the
portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B to this Indenture,
unless such certificate(s) shall have been provided earlier pursuant to
section 304(b)(v) hereof; and PROVIDED, FURTHER, that definitive Bearer
Securities (including a definitive Global Bearer Security) shall be
delivered in exchange for a portion of a temporary Global Security only in
compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of a
series in a temporary Global Security shall be exchanged for definitive
Debt Securities of the same series and of like tenor and terms following
the Global Exchange Date when the account holder instructs Euroclear or
CEDEL S.A., as the case may be, to request such exchange on such account
holder's behalf and, in the case of the exchange of the temporary Global
Security for definitive Bearer Securities (including a definitive Global
Bearer Security), unless such certificate(s) shall have been provided
earlier pursuant to Section 304(b)(v) hereof, the account holder delivers
to Euroclear or CEDEL S.A., as the case may be, a certificate in the form
set forth in Exhibit A-1 and, if applicable, A-2 to this Indenture, dated
no earlier than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global
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Exchange Agent, any authenticating agent appointed for such series of Debt
Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge
to the beneficial owners of such temporary Global Security, except that a
Person receiving definitive Debt Securities must bear the cost of
insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Debt Securities in person
at the offices of Euroclear and CEDEL S.A. Definitive Debt Securities in
bearer form to be delivered in exchange for any portion of a temporary
Global Security shall be delivered only outside the United States.
(v) Until exchanged in full as hereinabove provided, the temporary
Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the
same series and of like tenor and terms authenticated and delivered
hereunder, except that interest payable on a temporary Global Security on
an Interest Payment Date shall be payable to Euroclear and CEDEL S.A. on
such Interest Payment Date only if there has been delivery by Euroclear
and CEDEL S.A. to the Global Exchange Agent of a certificate or
certificates in the form set forth in Exhibit B to this Indenture dated no
earlier than the first Interest Payment Date, for credit without further
interest on or after such Interest Payment Date to the respective accounts
of the Persons who are the beneficial owners of such temporary Global
Security on such Interest Payment Date and who have each delivered to
Euroclear or CEDEL S.A., as the case may be, a certificate in the form set
forth in Exhibit A-1 and, if applicable, A-2 to this Indenture dated no
earlier than the first Interest Payment Date. Any interest so received by
Euroclear and CEDEL S.A. and not paid as herein provided prior to the
Global Exchange Date shall be returned to the Global Exchange Agent which,
upon expiration of two years after such Interest Payment Date, shall repay
such interest to the Company in accordance with Section 1003.
SECTION 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at one of the offices or agencies
to be maintained by the Company in accordance with the provisions of this
Section 305 and Section 1002, with respect to the Debt Securities of each series
which are Registered Securities, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company maintained for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
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At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denomination or denominations, of like tenor and terms and aggregate
principal amount, upon surrender of the Registered Securities to be exchanged at
such office or agency. Bearer Securities may not be delivered in exchange for
Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 301 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor and terms after the close of business
at such office or agency of (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(9) shall no longer be effective with respect to
the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the
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Global Security or Securities representing such series in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Debt Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to
a series of Debt Securities, the Depositary for such series of Debt Securities
may surrender a Global Security for such series of Debt Securities in exchange
in whole or in part for Debt Securities of such series of like tenor and terms
and in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without charge to any Holder,
(a) to each Person specified by such Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and of
any authorized denominations as requested by such person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Debt Securities (a) in definitive registered form in authorized
denominations, if the Debt Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Debt Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be
specified by the beneficial owner thereof, if the Debt Securities of such series
are issuable in either form; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Global Security unless
the Company or its agent shall have received from the person entitled to receive
the definitive Bearer Security a certificate substantially in the form set forth
in Exhibit A-1 and, if applicable, A-2 hereto; and PROVIDED FURTHER that
delivery of a Bearer Security shall occur only outside the United States; and
PROVIDED FURTHER that no definitive Bearer Security will be issued if the
Company has reason to know that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions
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from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Registered Securities to the persons in
whose names such Debt Securities are so registered. The Trustee shall deliver
Bearer Securities issued in exchange for a Global Security pursuant to this
Section to the persons, and in such authorized denominations, as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; PROVIDED, HOWEVER, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and PROVIDED FURTHER that delivery of a Bearer Security shall occur
only outside the United States; and PROVIDED FURTHER that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No charge to any Holder shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer, registration of transfer or exchange of
Debt Securities, other than exchanges expressly provided in this Indenture to be
made at the Company's own expense or without expense or without charge to the
Holders.
The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any particular series to be redeemed
for a period of fifteen days preceding the first publication of the relevant
notice of redemption or, if Registered Securities are outstanding and there is
no publication, the mailing of the relevant notice of redemption of Debt
Securities of such series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of such Registered Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of like tenor and terms of that series, PROVIDED that such Registered
Security shall be simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a
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result of such exchanges the Company would suffer adverse consequences under the
United States Federal income tax laws and regulations then in effect and the
Company has delivered to the Trustee a Company Order directing the Trustee not
to make such exchanges thereafter unless and until the Trustee receives a
subsequent Company Order to the contrary. The Company shall deliver copies of
such Company Orders to the Security Registrar.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT
SECURITIES.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; PROVIDED, HOWEVER, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if
any) and any interest on Bearer Securities shall, except as otherwise provided
in Section 1002, be payable only at an office or agency located outside the
United States; and PROVIDED, FURTHER, that, with respect to any such coupons,
interest represented thereby (but not any additional amounts payable as provided
in Section 1006), shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen Debt
Security, or in exchange for a Bearer Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Debt Security and
coupons, if any, shall be
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entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debt Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only, Eligible
Instruments the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be imposed upon
the Trustee or the Holder of such Registered Securities) will provide
money in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money and/or Eligible
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Instruments when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date. Unless the Trustee is acting as the Security Registrar,
promptly after such Special Record Date, the Company shall furnish the
Trustee with a list, or shall make arrangements satisfactory to the
Trustee with respect thereto, of the names and addresses of, and principal
amounts of Registered Securities of such series held by, the Holders
appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before
the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities may be listed, and upon such notice as maybe
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
Subject to the limitations set forth in Section 1002, the Holder of
any coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
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SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. CANCELLATION.
Unless otherwise provided with respect to a series of Debt
Securities, all Debt Securities and coupons surrendered for payment, redemption,
repayment, transfer, exchange or credit against any sinking fund payment
pursuant to this Indenture, shall, if surrendered to the Company or any agent of
the Company, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any Debt
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debt Securities so delivered
shall be promptly cancelled by the Trustee. No Debt Securities shall be
authenticated in lieu of or in exchange for any Debt Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Debt Securities and coupons held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that the cancelled Debt Securities or coupons be
returned to it.
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SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Debt Securities of any series, interest on the Debt Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CERTIFICATION BY A PERSON ENTITLED TO DELIVERY OF A
BEARER SECURITY.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification by given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. JUDGMENTS.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 301, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 301 is of the essence and
agrees that judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if any) and interest on
such Debt Securities and any appurtenant coupons shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking community in the
case of a composite currency on the Business Day immediately following the day
on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Debt Securities herein expressly provided for and rights to receive
payments of principal and interest thereon and any right to receive additional
amounts, as provided in Section 1006) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(a) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered in exchange
for Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as provided in
Section 305, (ii) Debt Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Bearer
Securities called for redemption or surrendered for repayment and
maturing after the relevant Redemption Date or Repayment Date, as
appropriate, surrender of which has been waived as provided in
Section 1106 or 1303 and (iv) Debt Securities and coupons for whose
payment money and/or Eligible Instruments have theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
cancelled or for cancellation; or
(b) all such Debt Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice by the Trustee in the name, and at the expense, of
the Company.
and the Company, in the case of (b)(i), (b)(ii) or (b)(iii) above,
has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax
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liability will be imposed upon the Trustee or the Holders of Debt
Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee,
without investment) be sufficient to pay and discharge the entire
indebtedness on such Debt Securities and coupons of such series for
principal (and premium, if any) and interest, and any mandatory
sinking fund, repayment or analogous payments thereon, on the
scheduled due dates therefor to the date of such deposit (in the
case of Debt Securities and coupons which have become due and
payable) or to the Stated Maturity or Redemption Date, if any, and
all Repayment Dates (in the case of Debt Securities repayable at the
option of the Holders thereof); PROVIDED, HOWEVER, that in the
event a petition for relief under the Bankruptcy Reform Act of 1978
or a successor statute is filed with respect to the Company within
91 days after the deposit, the obligations of the Company under the
Indenture with respect to the Debt Securities of such series shall
not be deemed terminated or discharged, and in such event the
Trustee shall be required to return the deposited money and Eligible
Instruments then held by the Trustee to the Company.
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company, and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Sections 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (b) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY AND ELIGIBLE INSTRUMENTS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Eligible Instruments deposited with the Trustee pursuant to Section
401, 403 or 1501 shall be held in trust and such money and the principal and
interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
SECTION 403. SATISFACTION, DISCHARGE AND DEFEASANCE OF DEBT
SECURITIES OF ANY SERIES.
If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Debt Securities of any series, then, notwithstanding Section
401, (i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt
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Securities of any such series and related coupons; (ii) the provisions of this
Indenture as it relates to such Outstanding Debt Securities and related coupons
shall no longer be in effect (except as to the rights of Holders of Debt
Securities to receive, from the trust fund described in subparagraph (1) below,
payment of (x) the principal of (and premium, if any) and any installment of
principal of (and premium, if any) or interest on such Debt Securities and
related coupons on the Stated Maturity of such principal (and premium, if any)
or installment of principal (and premium, if any) or interest or (y) any
mandatory sinking fund payments or analogous payments applicable to the Debt
Securities of that series on that day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Debt Securities, the
Company's obligations with respect to such Debt Securities under Sections 304,
305, 306, 1002, 1003 and 1006 and the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including those under Section 607 hereof);
and (iii) the Trustee, at the expense of the Company, shall, upon Company Order,
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(a) with respect to all Outstanding Debt Securities of such
series and related coupons, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee
irrevocably, as trust funds in trust, money and/or, to the extent
such Debt Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on which
when due (and without reinvestment and providing no tax liability
will be imposed upon the Trustee or the Holders of such Debt
Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee,
without investment) be sufficient to pay and discharge (i) the
principal of (and premium, if any) and interest on the Outstanding
Debt Securities of that series and related coupons on the Stated
Maturity of such principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to Debt
Securities of such series on the date on which such payments are due
and payable in accordance with the terms of this Indenture and of
such Debt Securities; or
(b) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by
Section 301, to be applicable to the Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable
with respect to the Outstanding Debt Securities of such series and related
coupons;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice
or lapse of time, or both, would become an Event of Default with respect
to the Debt Securities of such series shall have occurred and be
continuing on the date of such deposit and no
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Event of Default under Section 501(6) or Section 501(7) or event which
with the giving of notice or lapse of time, or both, would become an Event
of Default under Section 501(6) or Section 501(7) shall have occurred and
be continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (b) since the date
of this Indenture there has been a change in applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of Debt Securities and related
coupons of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;
(6) if the Debt Securities of that series are then listed on any
domestic or foreign securities exchange, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Debt Securities to be
delisted; and
(7) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of the entire indebtedness of all Outstanding Debt Securities and related
coupons have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(a) above
shall be irrevocable and shall be made under the terms of an escrow or trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow or
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section
403 with respect to all the Outstanding Debt Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Debt Security
of such series or a related coupon, if any, when it becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of Debt Securities of a series
other than such series), and continuance of such default or breach for a
period of 90 days after there as been given by registered or certified
mail, to the Company by the Trustee, or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder, or
(5) the failure of the Company, subject to the provisions of
Section 1008, to observe and perform the covenants contained in Section
1005; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
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(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) any other Event of Default, if any, provided with respect to
Debt Securities of such series specified as contemplated by Section 301.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Debt Securities of any series
at the time Outstanding occurs and its continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Debt Securities of such series may declare the principal amount (or,
if the Debt Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of and all accrued but unpaid interest on all the Debt Securities of
such series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by such Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Debt Securities of such series shall
terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any Debt
Securities of such series which have become due otherwise than by
such declaration of
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acceleration and interest thereon at the rate or rates prescribed
therefor in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest on each Debt Security
and any related coupons at the rate or rates prescribed therefor in
such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expense, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Debt Securities of such
series, other than the non-payment of the principal of Debt Securities of
such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Debt Security or any related coupon when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Debt Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment of final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities and coupons
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such Debt
Securities and coupons, wherever situated.
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If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings, or any voluntary or involuntary case under the
Federal bankruptcy laws as now or hereafter constituted, relative to the Company
or any other obligor upon the Debt Securities of a particular series or any
related coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Debt
Securities of such series and any appurtenant coupons and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities and
any coupons, in respect of which or for the benefit of which such money
has been collected ratably, without preference or priority of any kind,
according to the amounts due and payable on such Debt Securities and any
coupons for principal (and premium, if any) and interest, respectively.
The Holders of each series of Debt Securities denominated in ECU, any
other composite currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the
amount determined by the Exchange Rate Agent by converting the principal
amount Outstanding of such series of Debt Securities and matured but
unpaid interest on such series of Debt Securities in the currency in which
such series of Debt Securities is denominated into Dollars at the Exchange
Rate as of the date of declaration of acceleration of the Maturity of the
Debt Securities; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Debt Securities of any series or any related
coupons shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Debt Securities of
such series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceedings to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and
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in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Debt
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF DEBT SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Debt Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the
Debt Securities of such series, PROVIDED, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Responsible Officers of the
Trustee, determine that the proceedings so directed would be unjustly
prejudicial to the Holders of Debt Securities of such series not joining
in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series or coupons
affected.
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Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Debt Security or the payment of any coupons on or after the respective
Stated Maturity or Maturities expressed in such Debt Security or coupon (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law whenever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by the Trust
Indenture Act. In case an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture, and
shall use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee
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to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. NOTICE OF DEFAULT.
If a default occurs hereunder with respect to Debt Securities of any
series the Trustee shall transmit by mail to all Holders of Debt Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; PROVIDED, HOWEVER, that in the case of any default of the
character specified in Section 501(4) with respect to Debt Securities of such
series no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Debt Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Debt Securities of such series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, other than any such books or records containing
information as to the affairs of the customers of the Company or any of its
subsidiaries; PROVIDED that the Trustee may examine such books and records
relating to customers to the extent that such books and records contain
information as to any payments made to such customers in their capacity as
Holders of Debt Securities; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Exchange Rate Agent, Global Exchange Agent, Depositary or Paying
Agent shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons. The Trustee shall not be accountable for the use or application by the
Company of any Debt Securities or the proceeds thereof. The Trustee shall not
be responsible for and makes no representations to the Company's ability or
authority to issue Bearer Securities or the lawfulness thereof.
SECTION 605. MAY HOLD DEBT SECURITIES OR COUPONS.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee or any Paying Agent in trust hereunder
need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any Paying Agent shall be under any liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a claim prior to the Debt Securities
and any coupons upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Debt Securities or any coupons.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Debt Securities of any series by virtue of being a
trustee under (a) this Indenture with respect to any particular series of Debt
Securities or (b) the Indenture dated as of March 15, 1987.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; PROVIDED, HOWEVER, that if Section 310(a) of the Trust Indenture
Act or the rules and regulations of the Commission under the Trust Indenture Act
at any time permit a corporation organized and
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doing business under the laws of any other jurisdiction to serve as trustee of
an indenture qualified under the Trust Indenture Act, this Section 609 shall be
automatically amended to permit a corporation organized and doing business under
the laws of any such other jurisdiction to serve as Trustee hereunder. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with respect
to the Debt Securities of any series after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt
Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Debt Securities and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect to
any series of Debt Securities or a decree or order for relief by a court
having jurisdiction in the premises shall have been entered in respect of
the Trustee in an involuntary case under the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law; or a decree or order by a court
having jurisdiction in the premises shall have been entered for the
appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or other similar official of the Trustee or of its property
or affairs, or any public officer shall take charge or control
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of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, winding up or liquidation, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or its property or affairs, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take corporate action in
furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee for the Debt
Securities of such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities or one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 514, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
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SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of an appointment hereunder of a successor Trustee
with respect to all Debt Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt Securities, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Debt
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the executing or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company (or any other
obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding collection of claims against the
Company (or any such other obligor).
SECTION 614. AUTHENTICATING AGENT.
The Trustee may upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed on behalf of
the Trustee by an authenticating agent. Each authenticating agent must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States or of any State, having a combined capital
surplus of at least $1,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority in the case of an authenticating
agent who is not organized and doing business under the laws of the United
States or of any State thereof or the District of Columbia.
The Trustee hereby initially appoints Norwest Bank Minnesota, N.A.
as its authenticating agent.
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Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one
or more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee promptly
may appoint a successor authenticating agent. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605
shall be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By _______________________________________
AS AUTHENTICATING AGENT FOR THE TRUSTEE
By _______________________________________
AUTHORIZED OFFICER
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
with respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular Record
Date in respect of the Debt Securities of such series or on May 15 and
November 15 of each year with respect to each series of Debt Securities
for which there are no Regular Record Dates, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities as of such Regular Record Date or May 1 or
November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished. The Trustee
shall preserve for at least two years the names and addresses of Holders of
Bearer Securities filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Debt Securities pursuant to this
Indenture and at any other time required by the Trust Indenture Act, the Trustee
shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture and such other matters as may be required pursuant to the
Trust Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Debt Securities of such series are listed, with the Commission and
also with the Company. The Company will notify the Trustee when any series of
Debt Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; PROVIDED that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws
of the United States of America, any political subdivision thereof or any
State thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest (including all additional amounts, if any, payable
pursuant to Section 1006) on all the Debt Securities and any related
coupons and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both,
would become an Event of Default, shall have happened and be continuing;
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been met.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities or coupons (and if such
covenants are to be for the benefit of less than all series of Debt
Securities or coupons, stating that such covenants are expressly being
included solely for the benefit of such series), to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be applicable to less than all series of Debt Securities,
stating that such Events of Default are expressly being included solely to
be applicable to such series); or
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(4) to add to, change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance of
Debt Securities in uncertificated form, PROVIDED any such action shall
not adversely affect the interests of the Holders of Debt Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination (a) shall become
effective only when there is no Debt Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provisions or (b) shall not apply to any
Debt Security Outstanding; or
(6) to establish the form or terms of Debt Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with any provision of this Indenture, PROVIDED such other provisions
shall not adversely affect the interests of the Holders of Debt Securities
of any series or any related coupons in any material respect; or
(9) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interest of Holders of Debt Securities of any series
or any appurtenant coupons in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture of such Debt Securities of such series and any
related coupons; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security or coupon
affected thereby,
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(1) change the Stated Maturity of the principal or any installment
of principal of, or any installment of interest on, any Debt Security, or
reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption or repayment thereof, or change any obligation of
the Company to pay additional amounts pursuant to Section 1006 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of Payment,
or the coin or currency in which any Debt Security or the interest thereon
or any coupon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Debt Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1404 for
quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Debt Security
affected thereby; PROVIDED, HOWEVER, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Section 611(b) and 901(7), or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully
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protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL
INDENTURES.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Debt Securities and any appurtenant coupons that it will duly and punctually pay
the principal of (and premium, if any) and interest on the Debt Securities and
any appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer Securities
on or before Maturity, other than additional amounts, if any, payable as
provided in Section 1006 in respect of principal of (or premium, if any, on)
such a Debt Security, shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); PROVIDED, HOWEVER,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of this
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER,
payment of principal of and any premium and interest denominated in Dollars
(including additional amounts payable in respect thereof) on any Bearer Security
may be made at an office or agency of, and designated by, the Company located in
the United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Debt Securities, at
the option of the Holder of any Bearer Security or related coupon, payment may
be made by check in the currency designated for such payment pursuant to the
terms of such Bearer Security presented or mailed to an address outside the
United States or by transfer to an account in such currency maintained by the
payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the Debt
Securities of one or more
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series and any appurtenant coupons (subject to the preceding paragraph) may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for any series of Debt Securities
for such purposes. The Company will give prompt written notice to the Trustee
of any such designation and any change in the location of any such other office
or agency.
SECTION 1003. MONEY FOR DEBT SECURITIES PAYMENTS TO BE HELD IN
TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series
of Debt Securities other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Debt Securities of such series and
any appurtenant coupons in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities of such series or any appurtenant
coupons) in the making of any payment of principal of (and premium, if
any) or interest on the Debt Securities of such series or any appurtenant
coupons; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its
obligations under this Indenture with respect to Debt Securities of any series
or for any other purpose, pay,
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or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any principal and interest received on the Eligible Instruments
deposited with the Trustee or any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. PURCHASE OF DEBT SECURITIES BY COMPANY OR
SUBSIDIARY.
If and so long as the Debt Securities of a series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, the Company will not, and will not permit any of its
Subsidiaries to, purchase any Debt Securities of that series by private treaty
at a price (exclusive of expenses and accrued interest) which exceeds 120% of
the mean of the nominal quotations of the Debt Securities of that series as
shown in The Stock Exchange Daily Official List for the last trading day
preceding the date of purchase.
SECTION 1005. RESTRICTIONS UPON SALE OR ISSUANCE OF CAPITAL
STOCK OF CERTAIN SUBSIDIARY BANKS.
The Company will not, and will not permit any Subsidiary to, sell,
assign, pledge, transfer or otherwise dispose of, or permit any Principal
Subsidiary Bank to issue, any shares of Capital Stock of, or any securities
convertible into Capital Stock of, any Principal Subsidiary Bank or any shares
of Capital Stock of any Subsidiary owning, directly or indirectly, in whole or
in part, Capital Stock of any Principal Subsidiary Bank, except:
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(1) any sale, assignment, pledge, transfer or other disposition or
issuance made, in the minimum amount required by law, to any person for
the purpose of the qualification of such person to serve as a director;
(2) any sale, assignment, pledge, transfer or other disposition or
issuance for fair market value (as determined by the Board of Directors of
the Company, such determination being evidenced by a resolution of the
Board of Directors), if, after giving effect to such disposition and to
the issuance of any shares issuable upon conversion or exchange of
securities convertible or exchangeable into Capital Stock, the Company
would own directly or indirectly through other Subsidiaries not less than
80% of the shares of each class of Capital Stock of such Principal
Subsidiary Bank;
(3) any sale, assignment, pledge, transfer or other disposition or
issuance made in compliance with an order or direction of a court or
regulatory authority of competent jurisdiction; or
(4) any sale by any Principal Subsidiary Bank of additional shares
of Capital Stock to its stockholders at any price, so long a (a) prior to
such sale the Company owns, directly or indirectly, shares of the same
class and (b) immediately after such sale, the percentage of the shares of
such class of Capital Stock owned by the Company shall not have been
reduced.
SECTION 1006. PAYMENT OF ADDITIONAL AMOUNTS.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series
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or the related coupons who are United States Aliens without withholding for or
on account of any tax, assessment or other governmental charge described in the
Debt Securities of that series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Debt Securities or coupons
and the Company will pay to the Trustee or such Paying Agent the additional
amounts, if any, required by the terms of such Debt Securities and the first
paragraph of this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1007. OFFICER'S CERTIFICATE AS TO DEFAULT.
The Company will furnish to the Trustee not more than 90 days after
the end of the Company's fiscal year in each year (beginning with 1994) a brief
certificate from the principal executive, financial or accounting officer of the
Company as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
this Indenture), stating that in the course of the performance by the signer of
his or her duties as an officer of the Company, he or she would normally have
knowledge of any default by the Company and, if he or she has knowledge of any
default, specifying each such default of which the signer has knowledge and the
nature thereof.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1005 with respect to the Debt
Securities of any series if, before the time for such compliance the Holders of
at least 66 2/3% in principal amount of the Debt Securities at the time
Outstanding shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Debt Securities of any
series) in accordance with this Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE
REDEEMED.
Except as otherwise specified as contemplated by Section 301 for
Debt Securities of any series, if less than all the Debt Securities of any
series with like tenor and terms are to be redeemed, the particular Debt
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debt Securities of such
series with like tenor and terms not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple thereof
which is also an authorized denomination) of the principal amount of Registered
Securities or Bearer Securities (if issued in more than one authorized
denomination) of such series of a denomination larger than the minimum
authorized denomination for Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all Outstanding Debt Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Debt Security to be redeemed, and that
interest thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only at
such place or places which are outside the United States, except as
otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company, or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, aggregate and hold in trust as provided in Section 1003) an amount
of money and/or, to the extent the Debt Securities to be redeemed are
denominated and payable in Dollars only, Eligible Instruments the payments of
principal and interest on which when due (and without reinvestment and providing
no tax liability will be imposed upon the Trustee or the Holders of the Debt
Securities to be redeemed) will provide money on or prior to the Redemption Date
in such amounts as will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay the Redemption Price
of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Debt Securities or portions thereof which are to be
redeemed on that date; PROVIDED, HOWEVER, that deposits with respect to Bearer
Securities shall be made with a Paying Agent or Paying Agents located outside
the United States except as otherwise provided in Section 1002, unless otherwise
specified as contemplated by Section 301.
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SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Debt
Securities to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and PROVIDED FURTHER, that installments
of interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; PROVIDED, HOWEVER, that interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside of the United States except as otherwise
provided in Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
SECTION 1107. DEBT SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall
be surrendered at a Place of Payment therefor (with, if the Company, the
Security Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Debt Securities of a series except as otherwise
specified as contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the term of Debt Securities of any series is herein referred to an
"optional sinking fund payment". If provided for by the terms of Debt
Securities of any series, the amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT
SECURITIES.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; PROVIDED that
such Debt Securities have not been previously so credited. Such Debt Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in
lieu of cash payments pursuant to this Section 1202, the principal amount of
Debt Securities to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Debt Securities for
redemption, except upon Company Request, and such cash payment shall be held by
the Trustee or a Paying Agent and applied to the next succeeding sinking fund
payment, PROVIDED, HOWEVER, that the Trustee or such Paying Agent shall at the
request of the Company from time to time pay over and deliver to the Company any
cash payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
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SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for
any series of Debt Securities (unless a shorter period shall be satisfactory to
the Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Debt Securities of any series which are repayable at the option of
the Holders thereof before their Stated Maturity shall be repaid in accordance
with their terms and (except as otherwise specified pursuant to Section 301 for
Debt Securities of such series) in accordance with this Article.
SECTION 1302. REPAYMENT OF DEBT SECURITIES.
Each Debt Security which is subject to repayment in whole or in part
at the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
SECTION 1303. EXERCISE OF OPTION; NOTICE.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt Security to be repaid
in whole or in part together with written notice of the exercise of such option
at any office or agency of the Company in a Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; PROVIDED, HOWEVER, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and
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shall identify the Debt Security to be repaid and, in the case of a partial
repayment of the Debt Security, shall specify the denomination or denominations
of the Debt Security or Debt Securities of the same series to be issued to the
Holder for the portion of the principal of the Debt Security surrendered which
is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; PROVIDED, HOWEVER, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
except as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; PROVIDED, HOWEVER, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the Trustee receives a subsequent Company Order to
the contrary. The Company shall deliver copies of such Company Order to the
Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
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SECTION 1304. ELECTION OF REPAYMENT BY REMARKETING ENTITIES.
The Company may elect, with respect to Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, at any time prior to any Repayment Date to designate one or more
Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
SECTION 1305. SECURITIES PAYABLE ON THE REPAYMENT DATE.
Notice of exercise of the option of repayment having been given and
the Debt Securities so to be repaid having been surrendered as aforesaid, such
Debt Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt Securities of such series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Debt Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1401, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 no more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Debt Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Debt Securities of such
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series for any purpose specified in Section 1401, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Debt Securities of such series in the amount above specified, as
the case may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Debt Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series; PROVIDED, HOWEVER, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than
66 2/3% in principal amount of the Outstanding Debt Securities of a series, the
Persons entitled to vote 66 2/3% in principal amount of the Outstanding Debt
Securities of such series shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of majority in principal amount of the Outstanding Debt Securities of that
series, PROVIDED HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than 66 2/3% in
principal amount
71
<PAGE>
of the Outstanding Debt Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66 2/3% in principal amount of
the Outstanding Debt Securities of that series; and PROVIDED, FURTHER, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
Act which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Debt Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Debt Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Debt Securities of such series in regard to proof of the
holding of Debt Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or, in the case of Bearer Securities, by having
the signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by Holders of Debt Securities as provided in Section 1402(b),
in which case the Company or the Holders of Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of such series represented
at the meeting.
(c) At any meeting each Holder of a Debt Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; PROVIDED, HOWEVER, that
no vote shall be cast or counted at any meeting in
72
<PAGE>
respect of any Debt Security challenged as not Outstanding and ruled by the
chairperson of the meeting not to be Outstanding. The chairperson of the
meeting shall have no right to vote, except as a Holder of a Debt Security of
such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Debt Securities of such series represented at the meeting; and
the meeting may be held as so adjourned without further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Debt Securities of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1401. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
DEFEASANCE
SECTION 1501. TERMINATION OF COMPANY'S OBLIGATIONS.
If this Section 1501 is specified, as contemplated by Section 301,
to be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due
73
<PAGE>
dates therefor at the Stated Maturity thereof, the Company's obligations under
Section 1005 and any other covenant determined pursuant to Section 301 to be
subject to this Section shall terminate with respect to the Debt Securities of
the series for which such deposit was made; PROVIDED, HOWEVER, that (i) no
Event of Default with respect to the Debt Securities of such series under
Section 501(6) or 501(7) or event that with notice or lapse of time or both
would constitute such an Event of Default shall have occurred and be continuing
on such date, (ii) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound, and (iii) such termination shall not
relieve the Company of its obligations under the Debt Securities of such series
and this Indenture to pay when due the principal of (and premium, if any) and
interest and additional amounts on such Debt Securities and any coupons
appertaining thereto if such Debt Securities or coupons are not paid (or payment
is not provided for) when due from the money and Eligible Instruments (and the
proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under Section 1005 and any other covenant determined pursuant to Section 301 to
be subject to this Section that the Company deliver to the Trustee (i) an
Opinion of Counsel to the effect that: (a) Holders of Debt Securities of such
series and any coupons appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and termination
and (b) such Holders (and future Holders) will be subject to tax in the same
amount, manner and timing as if such deposit and termination has not occurred,
(ii) an Officers' Certificate to the effect that under the laws in effect on the
date such money and/or Eligible Instruments are deposited with the Trustee, the
amount thereof will be sufficient, after payment of all Federal, state and local
taxes in respect thereof payable by the Trustee, to pay principal (and premium,
if any) and interest when due on the Debt Securities of such series and any
coupons appertaining thereto; and (iii) an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for
relating to the defeasance contemplated in this Section have been complied with.
It shall be an additional condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's obligations pursuant
to the provisions of this Section under Section 1005 and any other covenant
determined pursuant to Section 301 to be subject to this Section, with respect
to the Debt Securities of any series then listed on the New York Stock Exchange,
that the Company deliver an Opinion of Counsel that the Debt Securities of such
series will not be delisted from the New York Stock Exchange as a result of such
deposit and termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under Section 1005 and any other covenant determined pursuant to
Section 301 to be subject to this Section.
74
<PAGE>
SECTION 1502. REPAYMENT TO COMPANY.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money or Eligible Instruments not required for the
payment of the principal of (and premium, if any) and interest on the Debt
Securities of any series and any related coupons for which money or Eligible
Instruments have been deposited pursuant to Section 1501 held by them at any
time.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1501. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1503. INDEMNITY FOR ELIGIBLE INSTRUMENTS.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
75
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NORWEST CORPORATION
By /S/ CHARLES D. WHITE
----------------------------
Its Senior Vice President
-------------------------
[CORPORATE SEAL]
Attest:
/S/ LAUREL A. HOLSCHUH
- ----------------------------------
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ SHARON K. McGRATH
--------------------------------
Assistant Vice President
[CORPORATE SEAL]
Attest:
/s/ PATRICIA MORAN-TRLAK
- -------------------------------------
Trust Officer
76
<PAGE>
STATE OF MINNESOTA )
)SS.
COUNTY OF HENNEPIN )
On the 27th day of December, 1993, before me personally came Charles
D. White, to me known, who, being duly sworn, did depose and say that he resides
at 5212 Malibu Drive, Edina, MN 55436; that he is a Senior Vice President of
Norwest Corporation, a corporation described in and which executed the above
instrument; that he knows the seal of said corporation; that it was so affixed
pursuant to the authority of the Board of Directors of said corporation; and
that he signed his name thereto pursuant to like authority.
/s/ JEANNE A. DALEY
------------------------------
Notary Public
77
<PAGE>
STATE OF ILLINOIS )
)SS.
COUNTY OF COOK )
On the 22nd day of December, 1993, before me personally came Sharon
K. McGrath, to me known, who, being duly sworn, did depose and say that she
resides at 2151 Haill Drive, Wheaton, Illinois 60187; that she is an Assistant
Vice President of The First National Bank of Chicago, a national banking
association described in and which executed the above instrument; that she knows
the seal of said corporation; that it was so affixed pursuant to the authority
of the Board of Directors of said corporation; and that she signed her name
thereto pursuant to like authority.
/s/ C.J. BERTELSON
-----------------------------
Notary Public
78
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
NORWEST CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of December 15, 1993
(the "Indenture") between Norwest Corporation and The First National Bank of
Chicago (the "Trustee"), covering the above-captioned Debt Securities. This is
to certify that as of the date hereof,______________________principal amount of
Debt Securities credited to you for our account (i) is owned by persons that are
not United States Persons, as defined below; (ii) is owned by United States
Persons that are (a) foreign branches of United States financial institutions
(as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States Persons who acquired the Debt Securities through foreign branches of
United States financial institutions and who hold the Debt Securities through
such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution encloses herewith a
certificate in the form of Exhibit A-2 to the Indenture); or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(d)(7)), which United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) certify that they have not acquired the Debt Securities for purposes of
resale directly or indirectly to a United States Person or to a person within
the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in
your books as being held for our account.] We understand that this certificate
is required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to _______________principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered
A-1
<PAGE>
and interest cannot be paid until we are able to so certify with respect to such
principal amount of Debt Securities.]*
Dated:___________________
[To be dated on or after
___________________(the date
determined as provided in the
Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
------------------------------------
(Authorized Signatory)
Name:________________________________
Title:_______________________________
____________________
*Delete if inappropriate
A-2
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
NORWEST CORPORATION
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of December 15, 1993
(the "Indenture"), between Norwest Corporation and The First National Bank of
Chicago, relating to the offering of the above-captioned Debt Securities (the
"Debt Securities"). Unless herein defined, terms used herein have the same
meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside the United
States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(a), (b) or (c) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings with respect to the matters covered by this certificate.
Dated:__________________
[To be dated on or after
____________________(the
date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
______________________________________
(Authorized Signatory)
Name:_________________________________
Title:________________________________
A-3
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
NORWEST CORPORATION
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion,_____________________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Debt Securities]* [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion"). This is to certify, pursuant
to the Indenture dated as of December 15, 1993 (the "Indenture") between Norwest
Corporation and The First National Bank of Chicago (the "Trustee"), that we have
received in writing, by tested telex or by electronic transmission from member
organizations with respect to each of the persons appearing in our records as
being entitled to a beneficial interest in the Submitted Portion a Certificate
of Beneficial Ownership by a Non-United States Person or by Certain Other
Persons [and, in some cases, a Certific
ate of Status as a Foreign Branch of a United States Financial Institution,
authorizing us to inform the issuer or the issuer's agent that it will comply
with the requirements of Section 165(j)(3)(a), (b) or (c) of the Internal
Revenue Code of 1986 and the regulations thereunder]* substantially in the form
of Exhibit A-1 [and A-2]* to the Indenture.
We hereby request that you deliver to the office of ____________in
________________definitive Bearer Securities in the denominations on the
attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated:________________________
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the
Euroclear System] [CEDEL S.A.]
_______________
*Delete if inappropriate.
B-1
